Corporations Amendment Regulations 2002 (No. 2) (16 of 2002)
Schedule 2 Amendment commencing on commencement of Family Law Legislation Amendment (Superannuation) Act 2001
[1] After regulation 7.9.83
insert
Division 11 Superannuation to which arrangements apply under the Family Law Act 1975
7.9.84 Definitions for Division 11
In this Division:
adjusted base amount , in relation to a non-member spouse on a day, means the adjusted base amount applicable to the non-member spouse on that day worked out under regulation 47 of the Family Law (Superannuation) Regulations 2001.
base amount , in relation to a non-member spouse means the amount mentioned in regulation 45 of the Family Law (Superannuation) Regulations 2001.
base amount payment split , in relation to a superannuation interest, means a payment split under which a base amount is allocated to the non-member spouse in relation to the superannuation interest under Part VIIIB of the Family Law Act 1975.
flag lifting agreement means a flag lifting agreement under Part VIIIB of the Family Law Act 1975.
member spouse , in relation to a superannuation 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.
non-member spouse , in relation to a superannuation interest that is subject to a payment split, means the person who is the non-member spouse in relation to the interest under Part VIIIB of the Family Law Act 1975.
payment split means a payment split under Part VIIIB of the Family Law Act 1975.
payment split notice means a notice given by a product issuer under:
(a) regulation 7A.03 of the SIS Regulations; or
(b) regulation 4A.03 of the RSA Regulations.
percentage-only interest has the meaning given by Part VIIIB of the Family Law Act 1975.
percentage payment split , in relation to a superannuation 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 superannuation interest.
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.
superannuation interest means a superannuation interest to which Part VIIIB of the Family Law Act 1975 applies.
7.9.85 Application of Division 11
This Division applies in relation to a superannuation interest.
7.9.86 Acquisition of financial product
For paragraph 761E (7) (a) of the Act, if:
(a) a person is a non-member spouse; and
(b) an entitlement to a benefit in relation to a superannuation interest under a payment split is first issued, granted or otherwise made available to that person;
the person is taken to have been issued with a superannuation product or an RSA product as appropriate.
7.9.87 Modification of Act: Product Disclosure Statement in relation to superannuation interest under Family Law Act
(1) Subject to subregulation (4), for paragraph 1020G (1) (c) of the Act, paragraph 1012F (b) of the Act is modified in its application in relation to:
(a) a superannuation interest; and
(b) the non-member spouse who acquires the superannuation interest;
in accordance with subregulation (2).
(2) Paragraph 1012F (b) is taken to require a regulated person to give the non-member spouse a Product Disclosure Statement when the regulated person gives a payment split notice to the non-member spouse.
(3) If paragraph 1012F (b), as modified in accordance with subregulation (2), applies in relation to a superannuation interest, regulation 7.9.04 does not apply in relation to the interest and the non-member spouse.
(4) For paragraph 1020G (1) (a) of the Act, if the governing rules of a superannuation entity do not provide for a non-member spouse to become a member of a superannuation fund in relation to the superannuation entity, section 1012B is modified by adding, after subsection 1012B (1):
'(1A) This section does not apply in relation to:
(a) a superannuation interest; and
(b) the non-member spouse who acquires the superannuation interest;
if the governing rules of a superannuation entity do not provide for a non-member spouse to become a member of a superannuation fund in relation to the superannuation entity.'.
7.9.88 Statement content in relation to superannuation interest under Family Law Act: superannuation fund
(1) For subparagraphs 1017DA (1) (a) (ii) and (iii), and paragraph 1017DA (1) (b), of the Act, a trustee of a superannuation entity that is a product issuer must give to a non-member spouse in relation to a superannuation product issued under a payment split a statement providing the following information:
(a) the contact details for the product issuer;
(b) if the interest is not a percentage-only interest and the payment split is a base amount payment split:
(i) the base amount allocated to the non-member spouse under the relevant agreement, flag lifting agreement or splitting order; and
(ii) the method by which the base amount will be adjusted on an ongoing basis; and
(iii) whether the governing rules of the fund would allow the non-member spouse to become a member of the superannuation entity; and
(iv) information about the options available to the non-member spouse in relation to the interest under Part 7A of the SIS Regulations;
(c) if the interest is not a percentage-only interest and the payment split is a percentage payment split:
(i) the percentage that is to apply to all splittable payments in respect of the interest; and
(ii) whether the governing rules of the fund would allow the non-member spouse to become a member of the superannuation entity; and
(iii) information about the options available to the non-member spouse in relation to the interest under Part 7A of the SIS Regulations;
(d) if the interest is a percentage-only interest:
(i) the percentage specified in the relevant superannuation agreement, flag lifting agreement or splitting order; and
(ii) if the payment is under a superannuation agreement or flag lifting agreement, whether the percentage is to apply for the purposes of subparagraph 90MJ (1) (b) (i) of the Family Law Act 1975; and
(iii) if the payment split is under a splitting order, whether the order is made under paragraph 90MT (1) (c) of the Family law Act 1975;
(e) the circumstances in which the entitlement of the non-member spouse will be come payable;
(f) the entitlement of the non-member spouse if, at the time when the statement is given:
(i) a payment were to be made in respect of the interest; and
(ii) the payment would be an eligible termination payment under Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act 1936;
and the value that the components of the payment mentioned in paragraphs 27AA (1) (a), (aa), (b), (c), (cb), (d) and (e) of that Act would have;
(g) information about the dispute resolution system that covers complaints by holders of the product and about how that system may be accessed;
(h) details of any amounts payable by the non-member spouse in respect of the payment split, and arrangements for the payment of any such amounts.
(2) For paragraph 1017DA (2) (b) of the Act, the statement mentioned in subregulation (1) is to be provided by a regulated person when the regulated person gives a payment split notice to the non-member spouse.
7.9.89 Statement content in relation to superannuation interest under Family Law Act: RSA
(1) For subparagraphs 1017DA (1) (a) (ii) and (iii), and paragraph 1017DA (1) (b), of the Act, an RSA provider that is a product issuer must give to a non-member spouse in relation to an RSA product issued under a payment split a statement providing the following information:
(a) the contact details for the product issuer;
(b) if the payment split is a base amount payment split:
(i) the base amount allocated to the non-member spouse under the relevant superannuation agreement, flag lifting agreement or splitting order; and
(ii) the method by which the base amount will be adjusted on an ongoing basis;
(c) if the payment split is a percentage payment split, the percentage that is to apply to all splittable payments in respect of the interest;
(d) the circumstances in which the entitlement of the non-member spouse will become payable;
(e) the options available under Part 4A of the RSA Regulations in relation to the non-member spouse's entitlement in respect of the interest;
(f) the entitlement of the non-member spouse if, at the time when the notice is given:
(i) a payment were to be made in respect of the interest; and
(ii) the payment would be an eligible termination payment under Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act 1936;
and the value that the components of the payment mentioned in paragraphs 27AA (1) (a), (aa), (b), (c), (cb), (d) and (e) of that Act would have;
(g) information about the dispute resolution system that covers complaints by holders of the product and about how that system may be accessed;
(h) details of any amounts payable by the non-member spouse in respect of the payment split, and arrangements for the payment of any such amounts.
(2) For paragraph 1017DA (2) (b) of the Act, the statement mentioned in subregulation (1) is to be provided by a regulated person when the regulated person gives a payment split notice to the non-member spouse.
7.9.90 Information for existing holders of superannuation products and RSA products in relation to superannuation interest
(1) For paragraph 1020G (1) (c) of the Act, this regulation applies in relation to a non-member spouse.
(2) The definition of concerned person in subsection 1017C (9) of the Act is modified by adding after paragraph (a) of the definition:
'(aa) is a non-member spouse in relation to a superannuation product or an RSA product that is issued in relation to a payment split; or'.
7.9.91 Periodic statements for retail clients for financial products that have an investment component - general
(1) For paragraph 1020G (1) (a) of the Act, this regulation applies in relation to a non-member spouse who holds a superannuation or RSA product by way of a payment split.
(2) The product issuer in relation to the superannuation product or RSA product is not required to comply with:
(a) paragraphs 1017D (5) (a) to (f) of the Act; and
(b) regulation 7.9.72 and subregulation 7.9.75 (1).
7.9.92 Periodic statements for retail clients for financial products that have an investment component - superannuation interest other than percentage-only interest
(1) For paragraph 1017D (5) (g) of the Act, this regulation applies if:
(a) an interest in a superannuation product is subject to a base amount payment split; and
(b) the interest is not a percentage-only interest; and
(c) the interest is in the growth phase; and
(d) none of the following has occurred under Part 7A of the SIS Regulations:
(i) a new membership interest has been created for the non-member spouse in relation to the payment split;
(ii) the transferable benefits of the non-member spouse have been transferred or rolled out of the superannuation fund;
(iii) the amount to which the non-member spouse is entitled under the payment split has been paid, as a lump sum, to the non-member spouse.
(2) This regulation also applies if:
(a) an interest in an RSA product 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 under Part 4A of the RSA Regulations:
(i) a new RSA has been opened for the non-member spouse;
(ii) the transferable benefits of the non-member spouse have been transferred or rolled out of the RSA;
(iii) the amount to which the non-member spouse is entitled under the payment split has been paid, as a lump sum, to the non-member spouse.
(3) The periodic statement for the member spouse and the non-member spouse must include the following information:
(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 method used to calculate the adjustment, including the applicable interest rate required under regulation 48 of the Family Law (Superannuation) Regulations 2001.
7.9.93 Trustees of superannuation entities - additional obligation to provide information in relation to superannuation interest
(1) For paragraph 1017DA (2) (a) of the Act, no information is to be provided to a non-member spouse under section 1017DA of the Act if the governing rules of a superannuation entity do not provide for the non-member spouse to become a member of a superannuation fund in relation to the superannuation entity.
(2) For paragraph 1017DA (2) (b) of the Act, if the governing rules of a superannuation entity provide for a non-member spouse to become a member of a superannuation fund in relation to the superannuation entity fund:
(a) information is to be provided to the non-member spouse under section 1017DA of the Act (and Subdivisions 5.4 to 5.7 of Part 7.9 of these Regulations) when the payment split notice is given to the non-member spouse; and
(b) the information is to be provided with the Product Disclosure Statement.
7.9.94 Division 5 of Part 7.9 of the Act not to apply in relation to non-member spouse
For paragraph 1019A (2) (c) of the Act, Division 5 of Part 7.9 of the Act does not apply in relation to the issue of a superannuation product or RSA product to a non-member spouse who acquires the superannuation interest by means of a payment split.
Note The non-member spouse may also wish to acquire an interest in the superannuation fund, or become an RSA holder, by making an application. In that case, regulation 7.9.94 would not apply and Division 5 of Part 7.9 of the Act would apply to the extent that that Division provides.