Superannuation Industry (Supervision) Amendment Regulations 2002 (No. 5) (Cth)

Superannuation Industry (Supervision) Amendment Regulations 2002 (No. 5)1

Statutory Rules 2002 No. 3532

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 Superannuation Industry (Supervision) Act 1993.

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 Superannuation Industry (Supervision) Amendment Regulations 2002 (No. 5).

2Commencement

These Regulations commence on the commencement of the Family Law Legislation Amendment (Superannuation) Act 2001.

3Amendment of Superannuation Industry (Supervision) Regulations 1994

Schedule 1 amends the Superannuation Industry (Supervision) Regulations 1994, as amended by the Superannuation Industry (Supervision) Amendment Regulations 2001 (No. 3).

Schedule 1Amendments

(regulation 3)

  

[1]Subregulation 1.03 (1), definition of adjusted base amount

omit

regulation 47

insert

Division 6.1A

[2]Subregulation 1.03 (1), after definition of flag lifting agreement

insert

FSR commencement has the same meaning as in section 1410 of the Corporations Act 2001.

Note The FSR commencement is the commencement of item 1 of Schedule 1 to the Financial Services Reform Act 2001.

[3]Subregulation 1.03 (1), definition of growth phase

substitute

growth phase has the meaning given by regulation 1.03AB.

[4]Subregulation 1.03 (1), after definition of non‑member spouse

insert

old Regulations means these Regulations as in force immediately before the FSR commencement.

[5]Subregulation 1.03 (1), definition of transferable benefits

omit everything before paragraph (a), insert

transferable benefits, in relation to a superannuation 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:

[6]Subregulation 1.03 (1), definition of transferable benefits, paragraphs (a) and (b)

omit each mention of

charged

insert

payable by the non‑member spouse

[7]Subregulation 1.03 (1), definition of transferable benefits, paragraph (c)

substitute

1. (c)

   if the payment split is a percentage payment split:

   1. (i)

      for an entitlement in respect of an accumulation interest — 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 specified percentage, less the amount of any fees payable by the non‑member spouse in respect of the payment split; or

   2. (ii)

      for an entitlement in respect of an interest in a self‑managed superannuation fund — the amount in relation to the interest at the time when the benefits are transferred, determined by a method that a court might use if the court were acting under paragraph 90MT (2) (b) of the Family Law Act 1975, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse in respect of the payment split; or

   3. (iii)

      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 specified percentage, less the amount of any fees payable by the non‑member spouse in respect of the payment split.

[8]Sub-subparagraph 1.03AA (1) (b) (i) (B)

omit

period;

insert

period; or

[9]After sub-subparagraph 1.03AA (1) (b) (i) (B)

insert

1. (C)

   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);

[10]After regulation 1.03AA

insert

1.03ABMeaning of growth phase

1. (1)

   A superannuation interest is taken to be in the growth phase at a particular date if the member satisfies 1 of the following requirements at that date:

   1. (a)

      the member has not satisfied a relevant condition of release;

   2. (b)

      the member has satisfied a relevant condition of release but no benefit has been paid in respect of the superannuation interest, and no action has been taken by or for the member under the governing rules of the fund to cash any benefit that the member is entitled to be paid as a result of satisfying the condition of release;

   3. (c)

      the member 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 member or, if the member has died, to his or her legal personal representative, but no action has been taken by or for the member, or his or her legal personal representative, under the governing rules of the fund to receive any other benefit that the member, or his or her estate, is entitled to be paid as a result of satisfying the condition of release.

2. (2)

   In this regulation:

relevant condition of release means a condition of release mentioned in item 101, 102, 103, 106, 108, 201, 202, 203 or 206 of Schedule 1.

[11]Paragraph 1.04AAA (1) (a)

substitute

1. (a)

   a superannuation interest in a fund is subject to a payment split, or a non‑member spouse interest has been created under regulation 7A.03B; and

[12]After subregulation 1.04AAA (3)

insert

1. (4)

   For regulation 1.03A, the non‑member spouse is to be treated as being a member of the fund in which the interest is held from the operative time for the payment split.

2. (5)

   For subsection 17A (5) and section 121A of the Act, a non‑member spouse who became a member of a fund as a result of the creation of a non‑member spouse interest under Part 7A.1A is not treated as a member of the fund until the earlier of:

   1. (a)

      6 months after the operative time for the payment split; and

   2. (b)

      the time that the non‑member spouse’s interest in the fund is confirmed under regulation 7A.03H or 7A.03I.

[13]Subparagraph 1.06 (7) (b) (iv)

substitute

1. (iv)

   the total amount of the payments to be made in a year in accordance with subparagraph (ii) or (iii) may be varied only:

   1. (A)

      to allow commutation to pay a superannuation contributions surcharge; or

   2. (B)

      to allow an amount to be paid under a payment split and reasonable fees in respect of the payment split to be charged; and

[14]Paragraph 1.08 (2) (b)

omit

surcharge.

insert

surcharge; or

[15]After paragraph 1.08 (2) (b)

insert

1. (c)

   is for conversion in relation to a commutation to give effect to an entitlement of a non‑member spouse under a payment split.

[16]Subregulation 2.05 (4)

omit

[17]Paragraph 2.36C (1) (f)

omit

[18]Subregulation 2.36D (1)

omit everything before paragraph (a), insert

1. (1)

   This regulation applies to an interest in a fund to which a transition period (within the meaning of section 1410 of the Corporations Act 2001) applies, if:

[19]Paragraph 2.36D (1) (a)

omit

an interest in a fund

insert

the interest

[20]Paragraph 2.36D (1) (d)

omit

under Part 7A:

insert

as a result of a payment split:

[21]Paragraph 2.36D (2) (c)

substitute

1. (c)

   the method used to calculate the adjustment, including the rate of return over the reporting period.

[22]Paragraph 2.36D (3) (a)

omit

practicable, and in any event within 6 months,

insert

practicable

[23]Paragraph 2.36D (3) (b)

substitute

1. (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 Subdivision 2.4.2 of the old Regulations.

[24]Subregulations 2.36D (4), (5) and (6)

substitute

1. (4)

   In this regulation:

reporting period means a reporting period that applies under Subdivision 2.4.2 of the old Regulations.

Note A non‑member may also be entitled to information under section 1017C of the Corporations Act 2001 and Division 2.5.

[25]After regulation 2.36D

insert

2.36EOther information to be given by trustee — adverse effects on benefits

1. (1)

   This regulation applies if:

   1. (a)

      an interest in a fund is subject to a base amount payment split or a percentage payment split; and

   2. (b)

      the interest is not a percentage-only interest; and

   3. (c)

      the interest is in the growth phase; and

   4. (d)

      none of the following has occurred in respect of a payment split:

      1. (i)

         a new interest was created for the non‑member spouse;

      2. (ii)

         the transferable benefits of the non‑member spouse were transferred or rolled out of the fund;

      3. (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. (2)

   The trustee of the fund must give to the non‑member spouse information about an event if the trustee reasonably believes that:

   1. (a)

      the event is likely to have a material effect on the interest in the fund; and

   2. (b)

      the effect may be adverse (whether the adverse effect would occur at the time of the event or a later time).

3. (3)

   The information required under subregulation (2) must be given before, or as soon as practicable after, the occurrence of the event.

[26]Paragraph 3.01 (f)

substitute

1. (f)

   a non‑member spouse for whom an interest has been created in the fund, if:

   1. (i)

      the member-spouse is a member of the fund; and

   2. (ii)

      the interest is not rolled over or transferred to another fund; or

[27]Regulation 4A.05, definitions of FSR commencement and old Regulations

omit

[28]After regulation 6.17A

insert

6.17AAPayments prevented under Family Law Act 1975

If a trustee of a regulated superannuation fund or an approved deposit fund does not make a payment in accordance with the standard set out in subregulation 6.17 (2) because the trustee is prevented from doing so:

1. (a)

   under subsection 90ML (4) of the Family Law Act 1975; or

2. (b)

   by an order made under subsection 90MU (1) of the Family Law Act 1975;

the trustee 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 trustee 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 trustee not to make a splittable payment in respect of the interest without the leave of the court.

[29]Subregulation 7A.03 (4)

substitute

1. (4)

   Despite subregulation (1), the trustee is not required to give a payment split notice in respect of an interest if the interest ceases to be subject to a payment split:

   1. (a)

      before the end of the period applying under subregulation (3); and

   2. (b)

      for a reason other than the creation of a non‑member spouse interest under regulation 7A.03B.

[30]Regulation 7A.03, note

substitute

Note A non‑member spouse may also be entitled to information under section 1017C of the Corporations Act 2001, Division 2.5 and Division 2.5A.

[31]After Division 7A.1

insert

Division 7A.1AOptions for trustee in relation to allocated pension interests

7A.03AApplication of Division 7A.1A

This Division applies in relation to a superannuation interest (the original interest) in a regulated superannuation fund, if:

1. (a)

   the original interest is subject to a payment split; and

2. (b)

   an allocated pension is being paid in respect of the original interest; and

3. (c)

   the trustee:

   1. (i)

      has not received a request under regulation 7A.05, 7A.06 or 7A.07; and

   2. (ii)

      has not taken an action under regulation 7A.10 in relation to the original interest.

7A.03BTrustee may create a new interest

1. (1)

   The trustee may, at or after the operative time for the payment split, create a new interest for the non‑member spouse (the non‑member spouse interest) in the regulated superannuation fund.

2. (2)

   If a trustee 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 7A until the trustee takes an action under regulation 7A.03H, 7A.03I, 7A.03J or 7A.03K.

3. (3)

   The value of the benefits in the non‑member spouse interest must be:

   1. (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

   2. (b)

      if the payment split is a percentage payment split:

      1. (i)

         for an entitlement in respect of an interest in a self‑managed superannuation fund — the amount in relation to the interest at the time when the new interest is created, determined by a method that a court might use if the court were acting under paragraph 90MT (2) (b) of the Family Law Act 1975, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse in respect of the payment split; or

      2. (ii)

         for an entitlement in respect of any other interest — 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 specified percentage, less the amount of any fees payable by the non‑member spouse in respect of the payment split.

4. (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. (5)

   The value of the benefits that the member spouse has in his or her interest must be reduced by the sum of:

   1. (a)

      the value of the benefits that the non‑member spouse has in the new interest; and

   2. (b)

      the amount of any fees payable by the non‑member spouse in respect of the payment split.

6. (6)

   The benefits in the non‑member spouse interest are unrestricted non‑preserved benefits.

7. (7)

   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 trustee must give to the member spouse and the non‑member spouse a written notice stating:

   1. (a)

      that the new interest has been created; and

   2. (b)

      that the value of the original interest has been reduced; and

   3. (c)

      the amount of the non‑member spouse interest.

7A.03CRequest to retain a non‑member spouse interest

The non‑member spouse may request the trustee to retain in the regulated superannuation fund the non‑member spouse’s benefits in the non‑member spouse interest.

7A.03DRequest to roll over or transfer benefits

1. (1)

   The non‑member spouse may request the trustee to roll over or transfer the withdrawal benefit from the non‑member spouse interest to another regulated superannuation fund, or to an approved deposit fund, EPSSS or RSA, specified in the request, to be held for the benefit of the non‑member spouse.

2. (2)

   If the original interest is in a self-managed superannuation fund, the non‑member spouse or the member spouse may request the trustee to roll over or transfer the withdrawal benefit from the non‑member spouse interest to another regulated superannuation fund, or to an approved deposit fund, EPSSS or RSA, specified in the request, to be held for the benefit of the non‑member spouse.

7A.03ERequest for lump sum payment

The non‑member spouse may request the trustee to pay the withdrawal benefit from the non‑member spouse interest to the non‑member spouse as a lump sum.

7A.03FRequirements for requests

1. (1)

   A request by a person under this Division must be made:

   1. (a)

      before the end of 28 days after the trustee gives a payment split notice to the person; or

   2. (b)

      if the trustee allows a longer period, before the end of the longer period allowed.

2. (2)

   The request must be made by written notice given to the trustee.

3. (3)

   The notice must:

   1. (a)

      be signed by the person making the request; and

   2. (b)

      state the date when it is given to the trustee; and

   3. (c)

      include the name, date of birth and postal address of the person making the request; and

   4. (d)

      for a request made by the member spouse, include a written nomination by the non‑member spouse of the regulated superannuation fund, approved deposit fund, EPSSS or RSA specified in the request.

4. (4)

   The trustee may allow the request to be withdrawn.

7A.03GGiving effect to a request

1. (1)

   This regulation applies if a trustee receives a request under this Division within the time allowed under subregulation 7A.03F (1).

2. (2)

   The trustee must give effect to the request unless:

   1. (a)

      the trustee has received an earlier request under this Division in respect of the same interest and the earlier request has not been withdrawn; or

   2. (b)

      for a request under regulation 7A.03C:

      1. (i)

         the regulated superannuation fund in which the non‑member spouse interest is held has fewer than 5 members; or

      2. (ii)

         the governing rules of the regulated superannuation fund in which the non‑member spouse interest is held do not allow the non‑member spouse to retain an interest in the fund; or

   3. (c)

      for a request under regulation 7A.03D — the regulated superannuation fund, approved deposit fund, EPSSS or RSA specified in the request does not accept the rollover or transfer of benefits for the non‑member spouse.

3. (3)

   If paragraph (2) (b) or (c) applies, the trustee must roll over or transfer the withdrawal benefit to:

   1. (a)

      another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non‑member spouse; or

   2. (b)

      an eligible rollover fund.

4. (4)

   If the amount is rolled over or transferred to an eligible rollover fund under paragraph (3) (b), the trustee must give to the non‑member spouse, within 28 days, a written notice stating:

   1. (a)

      that the benefits have been rolled over or transferred to an eligible rollover fund; and

   2. (b)

      the name and contact details of the fund; and

   3. (c)

      the amount that was rolled over or transferred.

7A.03HTrustee’s options if no request is received

1. (1)

   If a trustee does not receive a request under this Division within the time allowed under subregulation 7A.03F (1), the trustee may:

   1. (a)

      subject to subregulation (2), roll over or transfer the withdrawal benefit from the non‑member spouse interest to another regulated superannuation fund, or to an approved deposit fund, EPSSS or RSA, nominated by the non‑member spouse (subject to the governing rules of the other regulated superannuation fund, the approved deposit fund or EPSSS or the terms and conditions of the RSA) to be held for the benefit of the non‑member spouse; or

   2. (b)

      if the trustee does not, within the 28-day period specified in paragraph (2) (a), receive from the non‑member spouse a written notice nominating a regulated superannuation fund, approved deposit fund, EPSSS or RSA to which the withdrawal benefit from the non‑member spouse interest may be rolled over or transferred — roll over or transfer the withdrawal benefit from the non‑member spouse interest to an eligible rollover fund.

2. (2)

   Before rolling over or transferring the amount to a regulated superannuation fund, approved deposit fund, EPSSS or RSA under paragraph (1) (a), the trustee must give to the non‑member spouse a written notice stating that:

   1. (a)

      the non‑member spouse has 28 days from the date of the notice in which to nominate, by written notice to the trustee, a regulated superannuation fund, approved deposit fund, EPSSS or RSA to which the withdrawal benefit from the non‑member spouse interest may be rolled over or transferred; and

   2. (b)

      if the non‑member spouse does not, within the 28-day period, nominate a regulated superannuation fund, approved deposit fund, EPSSS or RSA for that purpose, the trustee will roll over or transfer the amount to an eligible rollover fund.

3. (3)

   A notice given by the trustee under subregulation (2) must state the name and contact details of the eligible rollover fund to which the amount may be rolled over or transferred.

4. (4)

   If the trustee does not take an action under subregulation (1), the trustee must give to the non‑member spouse a written notice:

   1. (a)

      confirming that the non‑member spouse has an interest in the fund; and

   2. (b)

      informing the non‑member spouse of the relevant cooling‑off arrangements.

5. (5)

   The trustee must take an action under subregulation (1) or (4) within 6 months after the operative time.

Note After the new interest in the fund is confirmed, it is no longer a non‑member spouse interest.

7A.03IConfirming that the non‑member spouse has an interest in the fund

1. (1)

   This regulation applies if:

   1. (a)

      a trustee receives a request under regulation 7A.03C within the time allowed under subregulation 7A.03F (1); and

   2. (b)

      paragraph 7A.03G (2) (b) does not apply to the request.

2. (2)

   The trustee must give to the non‑member spouse a written notice:

   1. (a)

      confirming that the non‑member spouse has an interest in the fund; and

   2. (b)

      informing the non‑member spouse of the relevant cooling‑off arrangements.

Note After the new interest in the fund is confirmed, it is no longer a non‑member spouse interest.

7A.03JRolling over or transferring the non‑member spouse’s interest

1. (1)

   This regulation applies if a trustee rolls over or transfers the withdrawal benefit from the non‑member spouse interest:

   1. (a)

      to give effect to a request under regulation 7A.03D; or

   2. (b)

      on the trustee’s initiative under subregulation 7A.03H (1).

2. (2)

   The trustee must roll over or transfer the amount as follows:

   1. (a)

      if the rollover or transfer is to give effect to a request under regulation 7A.03D, it must be done within:

      1. (i)

         90 days after receiving the request; or

      2. (ii)

         any longer period allowed by the Regulator;

   2. (b)

      if the rollover or transfer is to be done on the trustee’s initiative under paragraph 7A.03H (1) (a), it must be done within 90 days after the trustee receives the nomination from the non‑member spouse under subregulation 7A.03H (2);

   3. (c)

      if the rollover or transfer is to be done on the trustee’s initiative under paragraph 7A.03H (1) (b), it must be done within 90 days after the end of the 28-day period mentioned in subregulation 7A.03H (2).

3. (3)

   The trustee must give a notice to the non‑member spouse, within 28 days after the amount is rolled over or transferred, stating:

   1. (a)

      that the benefits have been rolled over or transferred; and

   2. (b)

      if the rollover or transfer was done on the trustee’s initiative under paragraph 7A.03H (1) (b) — the name and contact details of the fund to which the amount was rolled over or transferred; and

   3. (c)

      the amount that was rolled over or transferred.

7A.03KPaying a lump sum

1. (1)

   This regulation applies if a trustee pays to a non‑member spouse, as a lump sum, the withdrawal benefit from the non‑member spouse interest to give effect to a request under regulation 7A.03E.

2. (2)

   The trustee must pay the lump sum within:

   1. (a)

      90 days after receiving the request under regulation 7A.03E; or

   2. (b)

      any longer period allowed by the Regulator.

3. (3)

   The trustee must give to the non‑member spouse, within 28 days after the lump sum is paid, a written notice stating:

   1. (a)

      that the lump sum has been paid; and

   2. (b)

      the amount that was paid.

[32]Regulation 7A.04

omit

This Division

insert

1. (1)

   This Division

[33]Regulation 7A.04

insert

1. (2)

   This Division does not apply to an accumulation interest that is:

   1. (a)

      a partially vested accumulation interest if the court order, superannuation agreement or flag lifting agreement specifies a base amount that is greater than the current withdrawal benefit of the member; or

   2. (b)

      determined by reference to a policy of life insurance mentioned in regulation 5.15D.

2. (3)

   This Division does not apply to an original interest if the trustee has created a non‑member spouse interest under regulation 7A.03B.

3. (4)

   In this regulation:

partially vested accumulation interest has the meaning given by regulation 9 of the Family Law (Superannuation) Regulations 2001.

[34]Subregulation 7A.07 (1)

substitute

1. (1)

   This regulation applies:

   1. (a)

      if a non‑member spouse has satisfied a relevant condition of release at the operative time for the payment split; or

   2. (b)

      if an allocated pension is being paid in respect of the original interest; or

   3. (c)

      if the non‑member spouse’s interest derives from an original interest that comprises only unrestricted non‑preserved benefits.

[35]Paragraph 7A.09 (2) (b)

substitute

1. (b)

   for a request under regulation 7A.05:

   1. (i)

      the regulated superannuation fund in which the non‑member spouse interest is held has fewer than 5 members; or

   2. (ii)

      the governing rules of the regulated superannuation fund or approved deposit fund in which the original interest is held do not allow a new interest to be created for the non‑member spouse in the fund; or

[36]Subregulation 7A.09 (4)

substitute

1. (4)

   If transferable benefits are rolled over or transferred to an eligible rollover fund under paragraph (3) (b), the trustee must give to the non‑member spouse, within 28 days, a written notice stating:

   1. (a)

      that the benefits have been rolled over or transferred to an eligible rollover fund; and

   2. (b)

      the name and contact details of the fund; and

   3. (c)

      the amount that was rolled over or transferred; and

   4. (d)

      if the payment split is a base amount payment split, the amount of any adjustment that has been made to the base amount since:

      1. (i)

         if the trustee had previously provided information to the non‑member spouse under regulation 2.36D — the end of the last completed reporting period; or

      2. (ii)

         in any other case — the operative time.

[37]Subregulation 7A.11 (2)

omit

must be equal to the value of:

insert

must be:

[38]Paragraphs 7A.11 (2) (a) and (b)

omit each mention of

charged

insert

payable by the non‑member spouse

[39]Paragraph 7A.11 (2) (c)

substitute

1. (c)

   if the payment split is a percentage payment split:

   1. (i)

      for an entitlement in respect of an accumulation interest — the amount in relation to the interest at the time when the new interest is created, determined in accordance with regulation 28 and subregulation 31 (2A) of the Family Law (Superannuation) Regulations 2001, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse in respect of the payment split; or

   2. (ii)

      for an entitlement in respect of an interest in a self-managed superannuation fund — the amount in relation to the interest at the time when the new interest is created, determined by a method that a court might use if the court were acting under paragraph 90MT (2) (b) of the Family Law Act 1975, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse in respect of the payment split; or

   3. (iii)

      for an entitlement in respect of any other interest — 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 specified percentage, less the amount of any fees payable by the non‑member spouse in respect of the payment split.

[40]Subregulation 7A.11 (3)

after

If

insert

the payment split is a base amount payment split, and

[41]Subregulations 7A.11 (5) and (6)

substitute

1. (5)

   The value of the benefits that the member spouse has in his or her interest must be reduced by the sum of:

   1. (a)

      the value of the benefits that the non‑member spouse has in the new interest; and

   2. (b)

      the amount of any fees payable by the non‑member spouse in respect of the payment split.

2. (6)

   In creating the new interest:

   1. (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

   2. (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 interest was created.

[42]Subregulation 7A.11 (10)

substitute

1. (10)

   The trustee must give to the member spouse and the non‑member spouse, within 28 days after the new interest is created, a written notice stating:

   1. (a)

      that the new interest has been created; and

   2. (b)

      the amount allocated to the non‑member spouse in the new interest; and

   3. (c)

      if the payment split is a base amount payment split, the amount of any adjustment that has been made to the base amount since:

      1. (i)

         if the trustee had previously provided information to the non‑member spouse under regulation 2.36D — the end of the last completed reporting period; or

      2. (ii)

         in any other case — the operative time.

[43]Subregulations 7A.12 (2) and (3)

substitute

1. (2)

   The value of the benefits that the member spouse has in his or her interest must be reduced by the sum of:

   1. (a)

      the value of the transferable benefits; and

   2. (b)

      the amount of any fees payable by the non‑member spouse in respect of the payment split.

2. (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 trustee 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 in respect of the splittable payment.

3. (3A)

   In rolling over or transferring the transferable benefits:

   1. (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

   2. (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 benefits were rolled over or transferred.

4. (3B)

   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.

[44]Subregulation 7A.12 (5)

substitute

1. (5)

   The trustee must give to the member spouse and the non‑member spouse, within 28 days after the transferable benefits are rolled over or transferred, a written notice stating:

   1. (a)

      that the benefits have been rolled over or transferred; and

   2. (b)

      the amount that was transferred or rolled over; and

   3. (c)

      if the payment split is a base amount payment split, the amount of any adjustment that has been made to the base amount since:

      1. (i)

         if the trustee had previously provided information to the non‑member spouse under regulation 2.36D — the end of the last completed reporting period; or

      2. (ii)

         in any other case — the operative time.

[45]Subregulation 7A.13 (2)

omit

must be equal to the value of:

insert

must be:

[46]Paragraphs 7A.13 (2) (a) and (b)

omit each mention of

charged

insert

payable by the non‑member spouse

[47]Paragraph 7A.13 (2) (c)

substitute

1. (c)

   if the payment split is a percentage payment split:

   1. (i)

      for an entitlement in respect of an accumulation interest — the amount in relation to the interest at the date of the payment, determined in accordance with regulation 28 and subregulation 31 (2A) of the Family Law (Superannuation) Regulations 2001, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse in respect of the payment split; or

   2. (ii)

      for an entitlement in respect of an interest in a self‑managed superannuation fund — the amount in relation to the interest at the date of the payment, determined by a method that a court might use if the court were acting under paragraph 90MT (2) (b) of the Family Law Act 1975, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse in respect of the payment split; or

   3. (iii)

      for an entitlement in respect of any other interest — the amount in relation to the interest at the date of the payment, determined in accordance with the relevant method in Part 5 of the Family Law (Superannuation) Regulations 2001, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse in respect of the payment split.

[48]Subregulation 7A.13 (3)

after

If

insert

the payment split is a base amount payment split, and

[49]Subregulations 7A.13 (5) and (6)

substitute

1. (5)

   The value of the benefits that the member spouse has in his or her interest must be reduced by the sum of:

   1. (a)

      the value of the lump sum paid to the non‑member spouse; and

   2. (b)

      the amount of any fees payable by the non‑member spouse in respect of the payment split.

2. (6)

   In paying the lump sum to the non‑member spouse:

   1. (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

   2. (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 payment was made.

[50]After subregulation 7A.13 (7)

insert

1. (8)

   The trustee must give to the member spouse and the non‑member spouse, within 28 days after the lump sum is paid, a written notice stating:

   1. (a)

      that the lump sum has been paid; and

   2. (b)

      the amount that was paid; and

   3. (c)

      if the payment split is a base amount payment split, the amount of any adjustment that has been made to the base amount since:

      1. (i)

         if the trustee had previously provided information to the non‑member spouse under regulation 2.36D — the end of the last completed reporting period; or

      2. (ii)

         in any other case — the operative time.

[51]Paragraph 7A.14 (c)

omit

under Division 7A.2.

insert

as a result of a payment split.

[52]Subregulation 7A.16 (1)

substitute

1. (1)

   Subject to regulation 7A.17, this regulation applies if:

   1. (a)

      a non‑member spouse has not satisfied a relevant condition of release at the time of the splittable payment; and

   2. (b)

      the splittable payment does not derive from an allocated pension.

[53]Paragraph 7A.16 (2) (b)

omit

fund or an RSA,

insert

fund, an RSA, an approved deposit fund or an EPSSS,

[54]After subregulation 7A.16 (2)

insert

1. (2A)

   The trustee must preserve the amount mentioned in subregulation (2).

[55]Subregulation 7A.16 (4)

omit

applies),

insert

applies or an allocated pension),

[56]Paragraph 7A.16 (5) (b)

omit

fund or RSA

insert

fund, RSA, approved deposit fund or EPSSS

[57]Paragraph 7A.17 (1) (b)

omit

pension

insert

pension (other than an allocated pension)

[58]Subregulation 7A.18 (1)

substitute

1. (1)

   This regulation applies if:

   1. (a)

      a non‑member spouse has satisfied a relevant condition of release at the time of the splittable payment; or

   2. (b)

      the splittable payment derives from an allocated pension.

[59]Subparagraph 7A.18 (2) (b) (ii)

omit

fund or an RSA,

insert

fund, an RSA, an approved deposit fund or an EPSSS,

[60]After subregulation 7A.18 (2)

insert

1. (3)

   The trustee must comply with subregulation (2) within 90 days after the splittable payment becomes payable.

[61]After Division 7A.3

insert

Division 7A.4Superannuation interest split under the Family Law (Superannuation) Regulations 2001

7A.19Application

This Division applies if a trustee of a superannuation fund:

1. (a)

   creates a new interest in the fund for a non‑member spouse to satisfy regulation 14G of the Family Law (Superannuation) Regulations 2001; or

2. (b)

   transfers or rolls over to another superannuation fund or RSA an amount, to be held for the benefit of a non‑member spouse to satisfy regulation 14G of the Family Law (Superannuation) Regulations 2001; or

3. (c)

   pays an amount to a non‑member spouse to satisfy regulation 14G of the Family Law (Superannuation) Regulations 2001.

7A.20Creating a new interest

1. (1)

   This regulation applies if the trustee creates a new interest in the fund for the non‑member spouse.

2. (2)

   In creating the new interest:

   1. (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

   2. (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 interest was created.

3. (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.

7A.21Rolling over or transferring benefits

1. (1)

   This regulation applies if the trustee rolls over or transfers to another superannuation fund or RSA an amount to be held for the benefit of the non‑member spouse.

2. (2)

   In rolling over or transferring the transferable benefits:

   1. (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

   2. (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. (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.

7A.22Paying an amount

1. (1)

   This regulation applies if the trustee pays an amount to the non‑member spouse.

2. (2)

   In paying the amount to the non‑member spouse:

   1. (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

   2. (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.

[62]Paragraph 13.16 (2) (f)

substitute

1. (f)

   the alteration is made:

   1. (i)

      to give effect to a payment split; or

   2. (ii)

      to satisfy regulation 14G of the Family Law (Superannuation) Regulations 2001.

Notes

1. These Regulations amend Statutory Rules 1994 No. 57, as amended by 1994 Nos. 189 and 432; 1995 Nos. 47, 64, 142, 158, 159, 240, 293, 384 and 430; 1996 Nos. 44, 57, 122 and 344; 1997 Nos. 69, 117, 152, 153, 221, 243, 293, 309, 343 and 415; 1998 Nos. 76, 83, 108, 175, 177, 193, 240 and 312; 1999 Nos. 14, 31, 115, 239, 317 and 356; 2000 Nos. 119, 151, 185, 280 and 281; 2001 Nos. 37, 352 and 353; 2002 Nos. 21, 91, 150, 171 and 200.

2. Notified in the Commonwealth of Australia Gazette