FAMILY LAW (SUPERANNUATION) REGULATIONS 2001 - REG 5 Meaning of defined benefit interest

FAMILY LAW (SUPERANNUATION) REGULATIONS 2001 - REG 5

  (1)   For the purposes of these Regulations, a defined benefit interest is:

  (a)   subject to subregulation (2), a superannuation interest that a member spouse has in an eligible superannuation plan, being an interest in respect of the whole of which the member spouse is entitled, when benefits in respect of the interest become payable, to be paid a benefit that is, or may be, defined by reference to one or more of the amounts or factors mentioned in subregulation (1A); or

  (b)   subject to subregulation (2), a component of a superannuation interest that a member spouse has in an eligible superannuation plan, being a component in respect of which the member spouse is entitled, when benefits in respect of the interest become payable, to be paid a benefit that is, or may be, defined by reference to one or more of the amounts or factors mentioned in subregulation (1A); or

  (c)   a superannuation interest that:

  (i)   a member spouse has in the scheme provided for by the Australian Defence Force Cover Act 2015 ; and

  (ii)   is in the payment phase.

  (1A)   For subregulation (1), the amounts and factors are as follows:

  (a)   the amount of:

  (i)   the member spouse's salary at the date of the termination of the member spouse's employment, the date of the member spouse's retirement, or another date; or

  (ii)   the member spouse's salary averaged over a period;

  (b)   the amount of salary, or allowance in the nature of salary, payable to another person (for example, a judicial officer, a member of the Commonwealth or a State Parliament, a member of the Legislative Assembly of a Territory);

  (c)   a specified amount;

  (d)   specified conversion factors.

  (2)   However, a superannuation interest, or a component of a superannuation interest, is not a defined benefit interest because of paragraph   (1)(a) or (b) if:

  (a)   the only benefits payable in respect of the interest or component that are defined by reference to the amounts or factors mentioned in subregulation (1A) are benefits payable on death or invalidity; and

  (b)   there are no other circumstances in which benefits payable in respect of the interest or component are, or could have been, defined by reference to the amounts or factors mentioned in subregulation (1A).

Note 1:   Subregulation (2) has the effect that paragraphs   (1)(a) and (b) do not apply to a superannuation interest or component if defined benefit factors:

(a)   are only used to calculate death or invalidity benefits in respect of the interest or component; and

(b)   would not be used to calculate benefits in respect of the interest or component that would become payable in other circumstances, such as on age retirement or the termination of employment.

Note 2:   However, subregulation (2) does not prevent a superannuation interest or component mentioned in paragraph   (1)(c) being a defined benefit interest for the purposes of these Regulations (even if paragraph   (1)(a) or (b) could also apply to the superannuation interest or component).

Example 1:   Benefits in respect of a superannuation interest of a member spouse are payable on retirement based on the balance of the member's account. However, on death or invalidity the benefit is to be defined by reference to amounts or factors mentioned in subregulation (1A). The member retires on invalidity and the benefits that become payable to the member are then defined by reference to those amounts or factors. The superannuation interest is not a defined benefit interest because defined benefit factors only applied, and could only have applied, in the circumstance of the death or invalidity of the member spouse.

Example 2:   Benefits in respect of a component of a superannuation interest of a member spouse are payable in a range of circumstances, including death, invalidity or retirement, and are to be defined by reference to amounts or factors mentioned in subregulation   (1A). The component is a defined benefit interest because death or invalidity are not the only circumstances in which defined benefit factors are, or could be, applied to calculate the benefits in respect of the interest.