Retirement Savings Accounts Amendment Regulations 2002 (No. 5) (Cth)

Retirement Savings Accounts Amendment Regulations 2002 (No. 5)1
Statutory Rules 2002 No. 3522

I, PETER JOHN HOLLINGWORTH, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Retirement Savings Accounts Act 1997.
Dated 19 December 2002
PETER HOLLINGWORTH
Governor-General
By His Excellency’s Command
HELEN COONAN
Minister for Revenue and Assistant Treasurer

1Name of Regulations

These Regulations are the Retirement Savings Accounts Amendment Regulations 2002 (No. 5).

2Commencement

These Regulations commence on the commencement of the Family Law Legislation Amendment (Superannuation) Act 2001.
3Amendment of Retirement Savings Accounts Regulations 1997
Schedule 1 amends the Retirement Savings Accounts Regulations 1997.

Schedule 1Amendments

(regulation 3)

[1]Subregulation 1.03 (1), after definition of Act
insert
adjusted base amount, in relation to a non-member spouse at a particular date, means the adjusted base amount applicable to the non-member spouse at that date worked out under Division 6.1A of the Family Law (Superannuation) Regulations 2001.
[2]Subregulation 1.03 (1), after definition of advance instalment of surcharge
insert
allocated pension means a pension provided under the terms and conditions of an RSA that meet the standards of subregulation 1.07 (2).
base amount payment split, in relation to an RSA interest, means a payment split under which a base amount is allocated to the non‑member spouse in relation to the interest under Part VIIIB of the Family Law Act 1975.
[3]Subregulation 1.03 (1), after definition of costs
insert
eligible application, in relation to an RSA, means:
(a)
if, under section 1440 of the Corporations Act 2001, section 51 of the Act (as in force immediately before the FSR commencement) continues to apply to the RSA — an eligible application within the meaning of section 51 of the Act; and
(b)
in any other case — an eligible application within the meaning of subsection 1016A (1) of the Corporations Act 2001.
[4]Subregulation 1.03 (1), after definition of exempt public sector superannuation scheme
insert
flag lifting agreement means a flag lifting agreement under Part VIIIB of the Family Law Act 1975.
FSR commencement has the same meaning as in section 1410 of the Corporations Act 2001.
[5]Subregulation 1.03 (1), after definition of gainfully employed
insert
growth phase, for an RSA interest, has the meaning given by regulation 1.05A.
[6]Subregulation 1.03 (1), after definition of member
insert
member spouse, in relation to an RSA interest that is subject to a payment split, means the person who is the member spouse in relation to the interest under Part VIIIB of the Family Law Act 1975.
[7]Subregulation 1.03 (1), after definition of non-member spouse
insert
old Regulations means these Regulations as in force immediately before the FSR commencement.
operative time, for a payment split, means the operative time under Part VIIIB of the Family Law Act 1975 for the payment split.
[8]Subregulation 1.03 (1), after definition of payment split
insert
payment split notice means a notice given by an RSA provider under regulation 4A.03.
percentage payment split, in relation to an RSA interest, means a payment split under a superannuation agreement, flag lifting agreement or splitting order that specifies a percentage that is to apply to all splittable payments in respect of the interest.
[9]Subregulation 1.03 (1), definition of reviewable decision
substitute
reviewable decision means a decision of APRA to determine a form of consent under paragraph (b) of the definition of consent under regulation 4.30 or subregulation 4A.27 (8).
[10]Subregulation 1.03 (1), after definition of SIS Regulations
insert
splittable payment means a splittable payment under Part VIIIB of the Family Law Act 1975.
splitting order means a splitting order under Part VIIIB of the Family Law Act 1975.
superannuation agreement means a superannuation agreement under Part VIIIB of the Family Law Act 1975.
[11]Subregulation 1.03 (1), after definition of Tax Act
insert
transferable benefits, in relation to an RSA interest that is subject to a payment split and in relation to the non-member spouse in relation to that interest, means benefits that are equal to:
(a)
if the payment split is a base amount payment split and an adjusted base amount applies to the non‑member spouse when the benefits are transferred — the adjusted base amount less the amount of any fees payable by the non‑member spouse in respect of the payment split; or
(b)
if the payment split is a base amount payment split and an adjusted base amount does not apply to the non‑member spouse when the benefits are transferred — the base amount allocated to the non‑member spouse, within the meaning of regulation 45 of the Family Law (Superannuation) Regulations 2001, less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(c)
if the payment split is a percentage payment split:
(i)
for an entitlement in respect of an interest in the growth phase — the amount in relation to the interest at the time when the benefits are transferred, determined in accordance with regulation 28 and subregulation 31 (2A) of the Family Law (Superannuation) Regulations 2001 multiplied by the percentage specified in the relevant superannuation agreement, flag lifting agreement or splitting order, less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(ii)
for an entitlement in respect of any other interest — the amount in relation to the interest at the time when the benefits are transferred, determined in accordance with the relevant method in Part 5 of the Family Law (Superannuation) Regulations 2001, multiplied by the percentage specified in the relevant superannuation agreement, flag lifting agreement or splitting order, less the amount of any fees payable by the non-member spouse in respect of the payment split.
[12]Subregulation 1.03 (1), definition of withdrawal benefit, subparagraph (b) (ii)
omit
EPSSS;
insert
EPSSS; and
[13]Subregulation 1.03 (1), definition of withdrawal benefit, after paragraph (b)
insert
(c)
to another person or entity because of a payment split in respect of the RSA holder’s interest in the RSA;

[14]After regulation 1.05

insert

1.05AMeaning of growth phase

(1)
An RSA interest is taken to be in the growth phase at a particular date, if the RSA holder satisfies 1 of the following requirements at that date:
(a)
the RSA holder has not satisfied a relevant condition of release;
(b)
the RSA holder has satisfied a relevant condition of release but no benefit has been paid in respect of the RSA interest, and no action has been taken by or for the RSA holder under the terms and conditions of the RSA to cash any benefit that the RSA holder is entitled to be paid as a result of satisfying the condition of release;
(c)
the RSA holder has satisfied a relevant condition of release and a benefit (other than a benefit that is paid as a pension) has been paid to, or for the benefit of, the RSA holder or, if the RSA holder has died, to his or her legal personal representative, but no action has been taken by or for the RSA holder, or his or her legal personal representative, under the terms and conditions of the RSA to receive any other benefit that the RSA holder, or his or her estate, is entitled to be paid as a result of satisfying the condition of release.
(2)
In this regulation:
relevant condition of release means a condition of release mentioned in item 101, 102, 103, 106 or 107 of Schedule 2.

[15]After subregulation 1.07 (3)

insert
(4)
A benefit that is a pension provided under an RSA does not cease to be a pension for the purposes of the Act if the terms and conditions of the RSA do not meet the standards of subregulation (2) merely because of a payment split in respect of the RSA and any reasonable fees associated with the payment split.

[16]After Division 2.2

insert
Division 2.3AInformation about RSA interest subject to payment split

2.18AApplication of Division 2.3A

This Division applies to and in relation to an RSA only if, under section 1440 of the Corporations Act2001, Divisions 4 and 5 of Part 5 of the Act (as in force immediately before the FSR commencement) continue to apply to and in relation to the RSA.
Note Section 53 of the Act provides that a person must receive certain documents before becoming an RSA holder. Regulation 7.9.89 of the Corporations Regulations 2001 requires an RSA provider that is a product issuer to provide information to a non-member spouse in relation to an RSA product issued under a payment split.

2.18BOperating standards

For subsection 38 (1) of the Act, a requirement of this Division is a standard applicable to the operation of RSAs.
2.18CInformation to be provided by RSA provider — growth phase
(1)
This regulation applies if:
(a)
an RSA interest is subject to a base amount payment split; and
(b)
the interest is in the growth phase; and
(c)
none of the following has occurred as a result of a payment split:
(i)
a new RSA was opened for the non‑member spouse;
(ii)
the transferable benefits of the non-member spouse were transferred or rolled out of the RSA;
(iii)
the amount to which the non-member spouse is entitled under the payment split was paid, as a lump sum, to the non-member spouse.
(2)
The RSA provider must give to the member spouse and the non-member spouse the following information for each reporting period:
(a)
the value of the adjusted base amount applicable to the non-member spouse at the end of the reporting period;
(b)
the amount of the adjustment in the reporting period;
(c)
the rate of return over the reporting period.
(3)
The information required under subregulation (2):
(a)
must be given as soon as practicable after the end of the relevant reporting period; and
(b)
in the case of information that is to be given to the member spouse, must be given with the information required to be given to the member spouse under Division 2.3 of the old Regulations.
Note A non-member spouse may also be entitled to information under section 1017C of the Corporations Act 2001.
2.18DOther information to be given by RSA provider — adverse effect on benefits
(1)
This regulation applies if:
(a)
an RSA interest is subject to a base amount payment split or a percentage payment split; and
(b)
the interest is in the growth phase; and
(c)
none of the following has occurred as a result of a payment split:
(i)
a new RSA was opened for the non‑member spouse;
(ii)
the transferable benefits of the non-member spouse were transferred or rolled out of the RSA;
(iii)
the amount to which the non-member spouse is entitled under the payment split was paid, as a lump sum, to the non-member spouse.
(2)
The RSA provider must give to the non-member spouse information about an event if the RSA provider reasonably believes that:
(a)
the event is likely to have a material effect on the RSA interest; and
(b)
the event may be adverse (whether the adverse effect would occur at the time of the event or a later time).
(3)
The information required under subregulation (2) must be given before, or as soon as practicable after, the occurrence of the event.

[17]Paragraph 3.05 (b)

substitute
(b)
cashed under Part 4A; or
(c)
rolled over or transferred, as benefits of the RSA holder, or under Part 4A.

[18]Regulation 4.20

substitute

4.20Restriction on payment

(1)
The benefits of an RSA holder:
(a)
may be paid only by:
(i)
being cashed under Division 4.3 or Part 4A; or
(ii)
being rolled over or transferred under Division 4.4 or Part 4A; and
(b)
must not be paid except when, and to the extent that, the RSA provider is required or permitted under this Part or Part 4A to pay them; and
(c)
must be paid when, and to the extent that, the RSA provider is required under this Part or Part 4A to pay them.
(2)
If an RSA provider does not make a payment in accordance with the standard set out in subregulation (1) because the RSA provider is prevented from doing so:
(a)
under subsection 90ML (4) of the Family Law Act 1975; or
(b)
by an order made under subsection 90MU (1) of the Family Law Act 1975;
the RSA provider is not in breach of the standard.
Note Subsection 90ML (4) of the Family Law Act 1975 provides that while a payment flag is operating on a superannuation interest, the RSA provider must not make any splittable payment to any person in respect of the interest. Subsection 90MU (1) of the Family Law Act 1975 provides that a court may make an order in relation to a superannuation interest directing the RSA provider not to make a splittable payment without the leave of the court.

[19]Paragraph 4.24 (5) (b)

substitute
(b)
the amount of the mandated employer contributions made to another RSA or to a regulated superannuation fund or an EPSSS in respect of the RSA holder in respect of that period, if the benefits arising in respect of those contributions were transferred or rolled over to the RSA during that period; and

[20]Subregulation 4.26 (1)

omit
regulation 4.27,
insert
regulations 4.27, 4A.24 and 4A.28,

[21]Subregulation 4.28 (1)

omit
regulation 4.26 or 4.27,
insert
regulation 4.26, 4.27, 4A.24 or 4A.28,

[22]Subregulation 4.28 (2)

omit
regulation 4.26 or 4.27
insert
regulation 4.26, 4.27, 4A.24 or 4A.28

[23]After Part 4

insert

Part 4ARSA interests subject to payment split

Division 4A.1General

4A.01Purpose of Part 4A

The purpose of this Part is:
(a)
to facilitate the payment splitting arrangements established under Part VIIIB of the Family Law Act 1975; and
(b)
to provide for additional options that may be exercised in relation to RSA interests that are subject to a payment split under that Act.

4A.02Operating standards

For subsection 38 (1) of the Act, the standards set out in this Part are applicable to the operation of RSAs.

4A.03RSA provider to give payment split notice

(1)
If an RSA interest becomes subject to a payment split, the RSA provider must notify the member spouse and the non-member spouse in relation to the interest that the interest is subject to a payment split.
(2)
The notice must:
(a)
be in writing; and
(b)
state the date on which it is given.
(3)
The notice must be given:
(a)
for a payment split under a superannuation agreement or flag lifting agreement — within 28 days after the operative time for the payment split; and
(b)
for a payment split under a splitting order — by the later of:
(i)
the end of 28 days after the operative time for the payment split; and
(ii)
the end of 28 days after the RSA provider receives a copy of the order.
(4)
Despite subregulation (1), the RSA provider is not required to give a payment split notice in respect of an RSA interest if the interest ceases to be subject to the payment split:
(a)
before the end of the period applying under subregulation (3); and
(b)
for a reason other than the creation of a non-member spouse interest under regulation 4A.05.
Note A non-member spouse may also be entitled to information under section 1017C of the Corporations Act 2001 and Division 2.3A.
Division 4A.2Options available for allocated pension interests

4A.04Application of Division 4A.2

This Division applies in relation to an RSA interest (the original interest) if:
(a)
the original interest is subject to a payment split; and
(b)
an allocated pension is being paid in respect of the original interest; and
(c)
the RSA provider has not received a request under regulation 4A.16, 4A.17 or 4A.18 or taken an action under regulation 4A.21 in relation to the original interest.

4A.05RSA provider may open a new RSA

(1)
The RSA provider may, at or after the operative time for the payment split, open a new RSA (the non-member spouse interest) for the non-member spouse in the non-member spouse’s name.
(2)
If the RSA provider creates a non-member spouse interest under subregulation (1), the person known as the non-member spouse at the operative time will continue to be a non-member spouse for the purposes of Part 4A until the RSA provider takes an action under regulation 4A.11, 4A.12, 4A.13 or 4A.14.
(3)
The value of the benefits in the non-member spouse interest must be:
(a)
if the payment split is a base amount payment split — the base amount allocated to the non-member spouse, within the meaning of regulation 45 of the Family Law (Superannuation) Regulations 2001, less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(b)
if the payment split is a percentage payment split — the amount in relation to the interest at the time when the new interest is created, determined in accordance with the relevant method in Part 5 of the Family Law (Superannuation) Regulations 2001, multiplied by the percentage specified in the relevant superannuation agreement, flag lifting agreement or splitting order, less the amount of any fees payable by the non-member spouse in respect of the payment split.
(4)
The value of the benefits in the non-member spouse interest must not be more than the value of the withdrawal benefit in relation to the member spouse and the original interest immediately before the payment split.
(5)
The value of the benefits that the member spouse has in his or her interest must be reduced by:
(a)
the value of the benefits in the non-member spouse interest; and
(b)
the amount of any fees payable by the non-member spouse in respect of the payment split.
(6)
The benefits in the non-member spouse interest are unrestricted non-preserved benefits.
(7)
The new RSA is taken to be opened on the day when the RSA provider opens the new RSA.
(8)
At the time that the payment split notice is given or, if a payment split notice is not required, within 28 days after the operative time, the RSA provider must give to the member spouse and the non-member spouse a written notice stating:
(a)
that the new interest has been created; and
(b)
that the value of the original interest has been reduced; and
(c)
the amount of the non-member spouse interest.
4A.06Request to retain a non-member spouse interest
The non-member spouse may request the RSA provider to retain in the new RSA the non-member spouse’s benefits in the non-member spouse interest.

4A.07Request to roll over or transfer benefits

The non-member spouse may request the RSA provider to roll over or transfer the withdrawal benefit from the non-member spouse interest to an RSA provided by another RSA provider, or to a superannuation entity or an EPSSS, specified in the request, to be held for the benefit of the non-member spouse.

4A.08Request for lump sum payment

The non-member spouse may request the RSA provider to pay to the non-member spouse, as a lump sum, the withdrawal benefit from the non-member spouse interest.

4A.09Requirements for requests

(1)
A request by a person under this Division must be made:
(a)
before the end of 28 days after the RSA provider gives the payment split notice to the person; or
(b)
if the RSA provider allows a longer period, before the end of the longer period allowed.
(2)
The request must be made by a written notice given to the RSA provider.
(3)
The notice must:
(a)
be signed by the person making the request; and
(b)
state the date when it is given to the RSA provider; and
(c)
include the name, date of birth and postal address of the person making the request.
(4)
A notice containing a request to retain the non-member spouse interest under regulation 4A.06 must be accompanied by such other information as the RSA provider requires.
(5)
The RSA provider may allow the request to be withdrawn.

4A.10Giving effect to a request

(1)
This regulation applies if an RSA provider receives a request under this Division within the time allowed under regulation 4A.09.
(2)
The RSA provider must give effect to the request unless:
(a)
the RSA provider has received an earlier request under this Division in respect of the same interest and the earlier request has not been withdrawn; or
(b)
for a request under regulation 4A.06 — the RSA provider of the original interest is not permitted to retain the interest in an RSA for the non-member spouse; or
(c)
for a request under regulation 4A.07 — the RSA provider, superannuation entity or EPSSS specified in the request does not accept the rollover or transfer of benefits for the non-member spouse.

(3)
If paragraph (2) (b) or (c) applies, the RSA provider must roll over or transfer the amount to:
(a)
an RSA provided by another RSA provider, or to another superannuation entity or an EPSSS nominated by the non‑member spouse; or
(b)
an eligible rollover fund.
(4)
If the amount is rolled over or transferred to an eligible rollover fund under paragraph (3) (b), the RSA provider must give to the non-member spouse a written notice within 28 days stating:
(a)
that the benefits have been rolled over or transferred to an eligible rollover fund; and
(b)
the name and contact details of the fund; and
(c)
the amount that was rolled over or transferred.
4A.11RSA provider’s options if no request received
(1)
If the RSA provider does not receive a request under this Division within the time allowed under regulation 4A.09, the RSA provider may:
(a)
subject to subregulation (2), roll over or transfer the withdrawal benefit from the non-member spouse interest to an RSA provided by another RSA provider, or to a superannuation entity or an EPSSS nominated by the non‑member spouse (subject to the terms and conditions of the RSA or the governing rules of the superannuation entity or the EPSSS), to be held for the benefit of the non‑member spouse; or
(b)
if the RSA provider does not, within the 28 day period specified in paragraph (2) (a), receive from the non‑member spouse a written notice nominating an RSA, superannuation entity or EPSSS to which the withdrawal benefit from the non-member spouse interest may be rolled over or transferred, rollover or transfer that amount to an eligible roll over fund.
(2)
Before rolling over or transferring the withdrawal benefit from the non-member spouse interest to an RSA, superannuation entity or EPSSS under paragraph (1) (a), the RSA provider must give to the non-member spouse a written notice stating that:
(a)
the non-member spouse has 28 days from the date of the notice in which to nominate, by written notice to the RSA provider, an RSA, superannuation entity or EPSSS to which the withdrawal benefit from the non-member spouse interest may be rolled over or transferred; and
(b)
if the non-member spouse does not, within that 28-day period, nominate an RSA, superannuation entity or EPSSS for that purpose, the RSA provider will rollover or transfer the amount to an eligible rollover fund.
(3)
A notice given by the RSA provider under subregulation (2) must state the name and contact details of the eligible rollover fund to which the amount in the non-member spouse interest may be rolled over or transferred.
(4)
If the RSA provider does not take an action under subregulation (1), by the end of 6 months after the operative time, the RSA provider must give to the non-member spouse a written notice:
(a)
confirming that the non-member spouse has an RSA; and
(b)
informing the non-member spouse of the relevant cooling-off arrangements.

4A.12Confirming a non-member spouse RSA

(1)
This regulation applies if the RSA provider receives a request under regulation 4A.06 within the time allowed under regulation 4A.09, and paragraph 4A.10 (2) (b) does not apply to the request.
(2)
The RSA provider must give to the non-member spouse a written notice:
(a)
confirming that the non-member spouse has an RSA; and
(b)
informing the non-member spouse of the relevant cooling-off arrangements.
4A.13Rolling over or transferring the non-member spouse’s interest
(1)
This regulation applies if the RSA provider rolls over or transfers the withdrawal benefit from the non-member spouse’s interest:
(a)
to give effect to a request under regulation 4A.07; or
(b)
on the RSA provider’s initiative under subregulation 4A.11 (1).
(2)
The RSA provider must roll over or transfer the amount as follows:
(a)
if the rollover or transfer is to give effect to a request under regulation 4A.07, it must be done within:
(i)
90 days after receiving the request; or
(ii)
any longer period allowed by the Regulator;
(b)
if the rollover or transfer is to be done on the RSA provider’s initiative under paragraph 4A.11 (1) (a), it must be done within 90 days after the RSA provider receives the nomination from the non-member spouse under subregulation 4A.11 (2);
(c)
if the rollover or transfer is to be done on the RSA provider’s initiative under paragraph 4A.11 (1) (b), it must be done within 90 days after the end of the 28-day period mentioned in subregulation 4A.11 (2).
(3)
Within 28 days after the amount is rolled over or transferred, the RSA provider must give a notice to the non-member spouse, stating:
(a)
that the benefits have been rolled over or transferred; and
(b)
if the rollover or transfer was done on the RSA provider’s initiative under paragraph 4A.11 (1) (b) — the name and contact details of the fund to which the amount was rolled over or transferred; and
(c)
the amount that was rolled over or transferred.

4A.14Paying a lump sum

(1)
This regulation applies if, to give effect to a request under regulation 4A.08, the RSA provider pays to the non-member spouse, as a lump sum, the withdrawal benefit from the non‑member spouse interest.
(2)
The RSA provider must pay the lump sum within:
(a)
90 days after receiving the request under regulation 4A.08; or
(b)
any longer period allowed by the Regulator.
(3)
The RSA provider must give to the non-member spouse, within 28 days after the lump sum is paid, a written notice stating:
(a)
that the lump sum has been paid; and
(b)
the amount that was paid.
Division 4A.3Options available for certain RSA interests

4A.15Application of Division 4A.3

(1)
This Division applies if:
(a)
an RSA interest (the original interest) is subject to a payment split; and
(b)
either:
(i)
the original interest is in the growth phase; or
(ii)
an allocated pension is being paid in respect of the original interest.
(2)
This Division does not apply to an original interest if the RSA provider has created a non-member spouse interest under regulation 4A.05.
(3)
This Division does not apply to an RSA interest that is determined by reference to a policy of life insurance mentioned in regulation 3.11.

4A.16Request to open new RSA

If the RSA provider is an RSA institution, the non‑member spouse may request the RSA provider to open a new RSA for the non-member spouse in the non-member spouse’s name.
Note For requirements about financial product disclosure that may apply in relation to a request for an RSA provider to open a new RSA, see:
(a) Division 2.2 of the old Regulations for an interest to which a transition period (within the meaning of section 1440 of the Corporations Act 2001) applies; and
(b) Part 7.9 of the Corporations Act 2001 for an interest to which a transition period (within the meaning of section 1440 of the Corporations Act 2001) does not apply.

4A.17Request for transfer of benefits

The non-member spouse may request the RSA provider to roll over or transfer the transferable benefits to an RSA provided by another RSA provider, or to a superannuation entity or an EPSSS, specified in the request, to be held for the benefit of the non‑member spouse.

4A.18Request for lump sum payment

(1)
This regulation applies if:
(a)
the non-member spouse has satisfied a relevant condition of release at the operative time for the payment split; or
(b)
an allocated pension is being paid in respect of the original interest; or
(c)
the non-member spouse’s interest derives from an original interest that comprises only unrestricted non-preserved benefits.
(2)
The non-member spouse may request the RSA provider to pay to the non-member spouse, as a lump sum, the amount to which the non-member spouse is entitled under the payment split.
(3)
For this regulation:
(a)
relevant condition of release means a condition of release mentioned in item 101, 102, 103 or 106 of Schedule 2; and
(b)
a non-member spouse satisfies a condition of release if the event specified in the condition has occurred in relation to the non-member spouse; and
(c)
in the application of item 101 or 103 of Schedule 2 to a non-member spouse, a reference to an RSA holder in:
(i)
the definition of permanent incapacity in subregulation 4.01 (2); or
(ii)
the definition of retirement in subregulation 4.01 (4);
is taken to be a reference to the non-member spouse.

4A.19Requirements for requests

(1)
A request by a non-member spouse under this Division must be made:
(a)
before the end of 28 days after the RSA provider gives a payment split notice to the non-member spouse; or
(b)
if the RSA provider allows a longer period, before the end of the longer period allowed.
(2)
The request must:
(a)
be made by written notice given to the RSA provider; and
(b)
for a request under regulation 4A.16, be accompanied by an eligible application made by the non-member spouse.
(3)
The notice required by paragraph (2) (a) must:
(a)
be signed by the non-member spouse; and
(b)
state the date when it is given to the RSA provider; and
(c)
state the non-member spouse’s name, date of birth and postal address.
(4)
The RSA provider may allow the request to be withdrawn.

4A.20Giving effect to a request

(1)
This regulation applies if an RSA provider receives a request under this Division within the time allowed under regulation 4A.19.
(2)
The RSA provider must give effect to the request unless:
(a)
the RSA provider has received an earlier request under this Division in respect of the same interest and the earlier request has not been withdrawn; or
(b)
for a request under regulation 4A.16 — the RSA provider of the original interest is not permitted to open a new RSA for the non-member spouse or the request was not accompanied by an eligible application; or
(c)
for a request under regulation 4A.17 — the RSA provider, superannuation entity or EPSSS specified in the request does not accept the rollover or transfer of benefits for the non-member spouse.
(3)
If paragraph (2) (b) or (c) applies, the RSA provider must roll over or transfer the transferable benefits to:
(a)
an RSA provided by another RSA provider, or another superannuation entity or EPSSS nominated by the non‑member spouse; or
(b)
an eligible rollover fund.
(4)
If transferable benefits are rolled over or transferred to an eligible rollover fund under paragraph (3) (b), the RSA provider must give to the non-member spouse a written notice stating:
(a)
that the benefits have been rolled over or transferred to an eligible rollover fund; and
(b)
the name and contact details for the fund.

4A.21RSA provider options if no request received

(1)
If the RSA provider does not receive a request under regulation 4A.16, 4A.17 or 4A.18 within the time allowed under regulation 4A.19, the RSA provider may:
(a)
subject to subregulation (2), roll over or transfer the transferable benefits to an RSA provided by another RSA provider, or to a superannuation entity or an EPSSS, nominated by the non‑member spouse (subject to the terms and conditions of the RSA or the governing rules of the superannuation entity or EPSSS), to be held for the benefit of the non-member spouse; or
(b)
if the RSA provider does not, within the 28-day period specified in paragraph (2) (a), receive from the non‑member spouse a written notice nominating an RSA, superannuation entity or EPSSS to which the transferable benefits may be rolled over or transferred, roll over or transfer the transferable benefits to an eligible rollover fund.
(2)
Before rolling over or transferring the transferable benefits to an RSA, superannuation entity or EPSSS under paragraph (1) (a), the RSA provider must give to the non‑member spouse a written notice stating that:
(a)
the non-member spouse has 28 days from the date of the notice in which to nominate, by written notice to the RSA provider, an RSA, superannuation entity or EPSSS to which the transferable benefits may be rolled over or transferred; and
(b)
if the non-member spouse does not, within that 28‑day period, nominate an RSA, superannuation entity or EPSSS for that purpose, the RSA provider will roll over or transfer the transferable benefits to an eligible rollover fund.
(3)
A notice given by the RSA provider under subregulation (2) must state the name and contact details of the eligible rollover fund to which the non‑member spouse’s transferable benefits may be rolled over or transferred.

4A.22Opening a new RSA

(1)
This regulation applies if the RSA provider opens a new RSA in the non-member spouse’s name to give effect to a request under regulation 4A.16.
(2)
Subject to subregulations (3) and (4), the value of the benefits that the non-member spouse has in the new RSA must be:
(a)
if the payment split is a base amount payment split and an adjusted base amount applies to the non‑member spouse when the new RSA is opened — the adjusted base amount less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(b)
if the payment split is a base amount payment split and an adjusted base amount does not apply to the non‑member spouse when the new RSA is opened — the base amount allocated to the non‑member spouse, within the meaning of regulation 45 of the Family Law (Superannuation) Regulations 2001, less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(c)
if the payment split is a percentage payment split:
(i)
for an entitlement in respect of an interest in the growth phase — the amount in relation to the interest at the time when the new RSA is opened, determined in accordance with regulation 28 and subregulation 31 (2A) of the Family Law (Superannuation) Regulations 2001 multiplied by the percentage specified in the relevant superannuation agreement, flag lifting agreement or splitting order, less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(ii)
for an entitlement in respect of any other interest — the amount in relation to the interest at the time when the new RSA is opened, determined in accordance with the relevant method in Part 5 of the Family Law (Superannuation) Regulations 2001, multiplied by the percentage specified in the relevant superannuation agreement, flag lifting agreement or splitting order, less the amount of any fees payable by the non-member spouse in respect of the payment split.
(3)
If the payment split is a base amount payment split, and a splittable payment becomes payable in respect of the member spouse’s interest before the new RSA is opened, the value of the benefits that the non-member spouse has in the new RSA must be the amount applying under subregulation (2) less the amount the non-member spouse is entitled to be paid in respect of the splittable payment.
(4)
The value of the benefits that the non-member spouse has in the new RSA must not be more than the value of the withdrawal benefit in relation to the member spouse immediately before the payment split.
(5)
The value of the benefits that the member spouse has in his or her interest must be reduced by:
(a)
the value of the benefits that the non-member spouse has in the new RSA; and
(b)
the amount of any fees payable by the non-member spouse in respect of the payment split.
(6)
In opening the new RSA for the non-member spouse:
(a)
a proportion must be taken from the unrestricted non‑preserved benefits, the restricted non-preserved benefits and the preserved benefits of the member spouse; and
(b)
the proportion taken from each category of benefits must be the same as the proportion that the category bears to the member spouse’s interest immediately before the payment split.
(7)
The benefits held in the new RSA are unrestricted non‑preserved benefits, restricted non-preserved benefits or preserved benefits in accordance with the character that they had in the member spouse’s interest.
(8)
The new RSA is taken to be opened on the day when the RSA provider receives the request and eligible application in accordance with regulation 4A.19.
(9)
The RSA provider must give a notice to the non-member spouse and the member spouse, within 28 days after the new RSA is opened, stating:
(a)
that the new RSA has been opened; and
(b)
the amount of the benefits in the new RSA; and
(c)
if the payment split is a base amount payment split, any adjustment that has been made to the base amount since:
(i)
if the RSA provider had previously provided information to the non-member spouse under regulation 2.18C — the end of the last completed reporting period; or
(ii)
in any other case — the operative time.
4A.23Rolling over or transferring transferable benefits
(1)
This regulation applies if the RSA provider rolls over or transfers transferable benefits:
(a)
to give effect to a request under regulation 4A.17; or
(b)
on the RSA provider’s initiative under subregulation 4A.21 (1).
(2)
The value of the benefits that the member spouse has in his or her interest must be reduced by:
(a)
the value of the transferable benefits; and
(b)
the amount of any fees payable by the non-member spouse in respect of the payment split.
(3)
If the payment split is a base amount payment split, and a splittable payment becomes payable in respect of the member spouse’s interest before the RSA provider rolls over or transfers the transferable benefits, the amount rolled over or transferred for the non-member spouse must be the transferable benefits less the amount the non-member spouse is entitled to be paid in respect of the splittable payment.
(4)
In rolling over or transferring the transferable benefits for the non-member spouse:
(a)
a proportion must be taken from the unrestricted non‑preserved benefits, the restricted non-preserved benefits and the preserved benefits of the member spouse; and
(b)
the proportion taken from each category of benefits must be the same as the proportion that the category bears to the member spouse’s interest immediately before the payment split.
(5)
The benefits held in the new interest are unrestricted non‑preserved benefits, restricted non-preserved benefits or preserved benefits in accordance with the character that the benefits had in the member spouse’s interest.
(6)
The RSA provider must roll over or transfer the transferable benefits as follows:
(a)
if the rollover or transfer is to give effect to a request under regulation 4A.17, it must be done within:
(i)
90 days after receiving the request; or
(ii)
any longer period allowed by the Regulator;
(b)
if the rollover or transfer is to be done on the RSA provider’s initiative under paragraph 4A.21 (1) (a), it must be done within 90 days after the RSA provider receives the nomination from the non-member spouse under subregulation 4A.21 (2);
(c)
if the rollover or transfer is to be done on the RSA provider’s initiative under paragraph 4A.21 (1) (b), it must be done within 90 days after the end of the 28-day period mentioned in subregulation 4A.21 (2).
(7)
The RSA provider must give a notice to the non-member spouse and the member spouse, within 28 days after the benefits are rolled over or transferred, stating:
(a)
that the benefits have been rolled over or transferred; and
(b)
the amount that was rolled over or transferred; and
(c)
if the payment split is a base amount payment split, any adjustment that has been made to the base amount since:
(i)
if the RSA provider had previously provided information to the non-member spouse under regulation 2.18C — the end of the last completed reporting period; or
(ii)
in any other case — the operative time.

4A.24Paying a lump sum

(1)
This regulation applies if, to give effect to a request under regulation 4A.18, the RSA provider pays to the non‑member spouse, as a lump sum, the amount to which the non-member spouse is entitled under the payment split.
(2)
Subject to subregulations (3) and (4), the value of the lump sum to be paid to the non-member spouse must be:
(a)
if the payment split is a base amount payment split and an adjusted base amount applies to the non‑member spouse at the date of the payment — the adjusted base amount less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(b)
if the payment split is a base amount payment split and an adjusted base amount does not apply to the non‑member spouse at the date of the payment — the base amount allocated to the non‑member spouse, within the meaning of regulation 45 of the Family Law (Superannuation) Regulations 2001, less the amount of any fees payable by the non-member spouse in respect of the payment split; or

(c)
if the payment split is a percentage payment split:
(i)
for an entitlement in respect of an interest in the growth phase — the amount in relation to the interest at the time of the payment, determined in accordance with regulation 28 and subregulation 31 (2A) of the Family Law (Superannuation) Regulations 2001 multiplied by the percentage specified in the relevant superannuation agreement, flag lifting agreement or splitting order, less the amount of any fees payable by the non-member spouse in respect of the payment split; or
(ii)
for an entitlement in respect of any other interest — the amount in relation to the interest at the time of the payment, determined in accordance with the relevant method in Part 5 of the Family Law (Superannuation) Regulations 2001, multiplied by the percentage specified in the relevant superannuation agreement, flag lifting agreement or splitting order, less the amount of any fees payable by the non-member spouse in respect of the payment split.
(3)
For a base amount payment split, if a splittable payment becomes payable in respect of the member spouse’s interest before the lump sum is paid to the non-member spouse, the value of the lump sum to be paid to the non-member spouse must be the amount applying under paragraph (2) (a) or (b) less the amount the non-member spouse is entitled to be paid in respect of the splittable payment.
(4)
The value of the lump sum to be paid to the non‑member spouse must not be more than the value of the withdrawal benefit in relation to the member spouse immediately before the payment split.
(5)
The value of the benefits that the member spouse has in his or her interest must be reduced by:
(a)
the value of the lump sum paid to the non-member spouse; and
(b)
the amount of any fees payable by the non-member spouse in respect of the payment split.
(6)
In paying the lump sum to the non-member spouse:
(a)
a proportion must be taken from the unrestricted non‑preserved benefits, the restricted non-preserved benefits and the preserved benefits of the member spouse; and
(b)
the proportion taken from each category of benefits must be the same as the proportion that the category bears to the member spouse’s interest immediately before the payment split.
(7)
The RSA provider must pay the lump sum within:
(a)
90 days after receiving the request under regulation 4A.18; or
(b)
any longer period allowed by the Regulator.
(8)
The RSA provider must give a notice to the non-member spouse and the member spouse, within 28 days after the lump sum is paid, stating:
(a)
that a lump sum has been paid to the non-member spouse; and
(b)
the amount that was paid; and
(c)
if the payment split is a base amount payment split, any adjustment that has been made to the base amount since:
(i)
if the RSA provider had previously provided information to the non-member spouse under regulation 2.18C — the end of the last completed reporting period; or
(ii)
in any other case — the operative time.
Division 4A.4Splittable payments — payment standards for non-member spouse entitlements

4A.25Application of Division 4A.4

This Division applies if:
(a)
an RSA interest (the original interest) is subject to a payment split; and
(b)
the non-member spouse is entitled to be paid an amount from the original interest because a splittable payment in respect of the interest has become payable; and
(c)
a new RSA has not been opened for the non‑member spouse, or the transferable benefits of the non-member spouse have not been transferred or rolled out of the fund, as a result of a payment split.

4A.26Meaning of relevant condition of release

For this Division:
(a)
relevant condition of release means a condition of release mentioned in item 101, 102, 103 or 106 of Schedule 2; and
(b)
a non-member spouse satisfies a condition of release if the event specified in the condition has occurred in relation to the non-member spouse; and
(c)
in the application of item 101 or 103 of Schedule 2 to a non-member spouse, a reference to an RSA holder in:
(i)
the definition of permanent incapacity in subregulation 4.01 (2); or
(ii)
the definition of retirement in subregulation 4.01 (4);
is taken to be a reference to the non-member spouse.
4A.27Preservation of non-member spouse entitlements
(1)
This regulation applies if:
(a)
the non-member spouse has not satisfied a relevant condition of release at the time of the splittable payment; and
(b)
the splittable payment does not derive from an allocated pension.
(2)
The RSA provider of the RSA in which the original interest is held must:
(a)
if the RSA provider has received an eligible application from the non-member spouse to open a new RSA, and the RSA provider is otherwise permitted to open a new RSA for the non-member spouse — open a new RSA in the non-member spouse’s name and transfer the amount to the new RSA; or
(b)
roll over or transfer the amount to an RSA provided by another RSA provider, or to a regulated superannuation fund, an approved deposit fund or an EPSSS, to be held for the benefit of the non-member spouse.
(3)
The RSA provider must preserve the amount mentioned in subregulation (2).
(4)
The RSA provider must roll over or transfer the lump sum within:
(a)
90 days after the splittable payment becomes payable; or
(b)
any longer period allowed by the Regulator.
(5)
Subject to subregulation (6), the amount must not be rolled over or transferred unless the transferor RSA provider:
(a)
has received, from the non-member spouse, consent to the rollover or transfer; or
(b)
believes, on reasonable grounds, that the receiving RSA provider, or the trustee of the receiving regulated superannuation fund, approved deposit fund or EPSSS has received, from the non-member spouse, consent to the rollover or transfer.
(6)
If the transferor RSA provider believes, on reasonable grounds and after making reasonable inquiries, that the non-member spouse has not given a consent mentioned in subregulation (5):
(a)
the RSA provider must apply for the issue to the non‑member spouse of an interest in an eligible rollover fund that is a regulated superannuation fund; and
(b)
the amount must be rolled over or transferred to that fund, approved deposit fund or EPSSS.
(7)
The consent of the member spouse to a rollover or transfer under this regulation is not required.
(8)
In subregulation (5):
consent means:
(a)
written consent; or
(b)
any other form of consent determined by APRA as sufficient in the circumstances.

4A.28Cashing of non-member spouse entitlements

(1)
This regulation applies if:
(a)
the non-member spouse has satisfied a relevant condition of release at the time of the splittable payment; or
(b)
the splittable payment derives from an allocated pension.
(2)
When the splittable payment becomes payable, the RSA provider of the RSA in which the original interest is held must:
(a)
pay the amount to which the non-member spouse is entitled to the non-member spouse; or
(b)
if the amount is not a pension and the non‑member spouse so requests:
(i)
subject to subregulation (4), open a new RSA in the non-member spouse’s name and transfer the amount to the new RSA; or
(ii)
roll over or transfer the amount to an RSA provided by another RSA provider, or to a regulated superannuation fund, an approved deposit fund or an EPSSS, nominated by the non‑member spouse, to be held for the benefit of the non-member spouse.
(3)
The RSA provider must comply with subregulation (2) within 90 days after the splittable payment becomes payable.
(4)
An RSA provider must not open a new RSA for a non‑member spouse unless:
(a)
the RSA provider has received an eligible application from the non‑member spouse to open a new RSA; and
(b)
the RSA provider is otherwise permitted to open a new RSA for the non-member spouse.
Division 4A.5Interest split under the Family Law (Superannuation) Regulations 2001

4A.29Application

This Division applies if, to satisfy regulation 14G of the Family Law (Superannuation) Regulations 2001, an RSA provider:
(a)
opens a new RSA for a non-member spouse; or
(b)
transfers or rolls over to an RSA provided by another RSA provider or to a regulated superannuation fund, an approved deposit fund or an EPSSS, an amount to be held for the benefit of a non-member spouse; or
(c)
pays an amount to a non-member spouse.

4A.30Creating a new interest

(1)
This regulation applies if the RSA provider opens a new RSA for the non-member spouse.
(2)
In creating the new interest:
(a)
a proportion must be taken from the unrestricted non‑preserved benefits, the restricted non-preserved benefits and the preserved benefits of the member spouse; and
(b)
the proportion taken from each category of benefits must be the same as the category bears to the member spouse’s interest immediately before the new RSA was opened.
(3)
The benefits held in the new interest are unrestricted non‑preserved benefits, restricted non-preserved benefits or preserved benefits in accordance with the character that they had in the member spouse’s interest.

4A.31Rolling over or transferring benefits

(1)
This regulation applies if the RSA provider rolls over or transfers to an RSA provided by another RSA provider or to a regulated superannuation fund, an approved deposit fund or an EPSSS, an amount to be held for the benefit of the non‑member spouse.
(2)
In rolling over or transferring the transferable benefits:
(a)
a proportion must be taken from the unrestricted non‑preserved benefits, the restricted non-preserved benefits and the preserved benefits of the member spouse; and
(b)
the proportion taken from each category of benefits must be the same as the category bears to the member spouse’s interest immediately before the amount was rolled over or transferred.
(3)
The benefits held in the new interest are unrestricted non‑preserved benefits, restricted non-preserved benefits or preserved benefits in accordance with the character that the benefits had in the member spouse’s interest.

4A.32Paying an amount

(1)
This regulation applies if the RSA provider pays an amount to the non-member spouse.
(2)
In paying the amount to the non-member spouse:
(a)
a proportion must be taken from the unrestricted non‑preserved benefits, the restricted non-preserved benefits and the preserved benefits of the member spouse; and
(b)
the proportion taken from each category of benefits must be the same as the category bears to the member spouse’s interest immediately before the amount was paid.

[24]Subparagraph 5.03 (1) (e) (ii)

omit
offset.
insert
offset; or

[25]After paragraph 5.03 (1) (e)

insert
(f)
the contributions are in satisfaction of an entitlement under a payment split.

[26]Regulation 6.17

substitute

6.17Payment of benefit to eligible rollover fund

(1)
For subsection 89 (1) of the Act, it is a condition that the beneficiary is not a non-member spouse whose entitlement under a payment split is to be dealt with under regulation 4A.27.
(2)
Subject to subregulation (3), for paragraph 89 (3) (b) of the Act, the amount of the consideration for the issue of a superannuation interest is equal to the amount of the RSA holder’s withdrawal benefit in the RSA.
(3)
For paragraph 89 (3) (b) of the Act, the amount of the consideration for the issue of a superannuation interest does not include any amount that would be payable to the member’s spouse or former spouse under a payment split.
Note Section 89 of the Act sets out the circumstances in which the RSA provider may apply to the trustee of an eligible rollover fund, on behalf of an RSA holder, for the issue to the RSA holder of a superannuation interest in the eligible rollover fund.

Notes

1. These Regulations amend Statutory Rules 1997 No. 116, as amended by 1997 Nos. 150, 151, 242, 294, 308 and 342; 1998 Nos. 82, 176, 178 and 192; 1999 Nos. 13 and 315; 2000 No. 279; 2002 Nos. 20, 47, 90, 149 and 200.
2. Notified in the Commonwealth of Australia Gazette