Retirement Savings Accounts Amendment Regulations 2002 (No. 5) (352 of 2002)
Schedule 1 Amendments
23 After Part 4
insert
Part 4A RSA interests subject to payment split
Division 4A.1 General
4A.01 Purpose 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.02 Operating standards
For subsection 38 (1) of the Act, the standards set out in this Part are applicable to the operation of RSAs.
4A.03 RSA 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.2 Options available for allocated pension interests
4A.04 Application 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.05 RSA 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.06 Request 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.07 Request 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.08 Request 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.09 Requirements 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.10 Giving 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.11 RSA 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.12 Confirming 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.13 Rolling 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.14 Paying 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.3 Options available for certain RSA interests
4A.15 Application 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.16 Request 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.17 Request 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.18 Request 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.19 Requirements 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.20 Giving 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.21 RSA 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.22 Opening 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.23 Rolling 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.24 Paying 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.4 Splittable payments - payment standards for non-member spouse entitlements
4A.25 Application 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.26 Meaning 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.27 Preservation 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.28 Cashing 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.5 Interest split under the Family Law (Superannuation) Regulations 2001
4A.29 Application
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.30 Creating 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.31 Rolling 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.32 Paying 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.