Superannuation Industry (Supervision) Amendment Regulations 2002 (No. 5) (353 of 2002)
Schedule 1 Amendments
31 After Division 7A.1
insert
Division 7A.1A Options for trustee in relation to allocated pension interests
7A.03A Application of Division 7A.1A
This Division applies in relation to a superannuation interest (the original interest ) in a regulated superannuation fund, 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 trustee:
(i) has not received a request under regulation 7A.05, 7A.06 or 7A.07; and
(ii) has not taken an action under regulation 7A.10 in relation to the original interest.
7A.03B Trustee may create a new interest
(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) 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) 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:
(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
(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) 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 the sum of:
(a) the value of the benefits that the non-member spouse has in the new 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) 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:
(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.
7A.03C Request 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.03D Request to roll over or transfer benefits
(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) 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.03E Request 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.03F Requirements for requests
(1) A request by a person under this Division must be made:
(a) before the end of 28 days after the trustee gives a payment split notice to the person; or
(b) if the trustee allows a longer period, before the end of the longer period allowed.
(2) The request must be made by written notice given to the trustee.
(3) The notice must:
(a) be signed by the person making the request; and
(b) state the date when it is given to the trustee; and
(c) include the name, date of birth and postal address of the person making the request; and
(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) The trustee may allow the request to be withdrawn.
7A.03G Giving effect to a request
(1) This regulation applies if a trustee receives a request under this Division within the time allowed under subregulation 7A.03F (1).
(2) The trustee must give effect to the request unless:
(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
(b) for a request under regulation 7A.03C:
(i) the regulated superannuation fund in which the non-member spouse interest is held has fewer than 5 members; or
(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
(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) If paragraph (2) (b) or (c) applies, the trustee must roll over or transfer the withdrawal benefit to:
(a) another regulated superannuation fund, approved deposit fund, EPSSS or RSA 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 trustee must give to the non-member spouse, within 28 days, 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 of the fund; and
(c) the amount that was rolled over or transferred.
7A.03H Trustee's options if no request is received
(1) If a trustee does not receive a request under this Division within the time allowed under subregulation 7A.03F (1), the trustee may:
(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
(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) 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:
(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
(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) 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) If the trustee does not take an action under subregulation (1), the trustee must give to the non-member spouse a written notice:
(a) confirming that the non-member spouse has an interest in the fund; and
(b) informing the non-member spouse of the relevant cooling-off arrangements.
(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.03I Confirming that the non-member spouse has an interest in the fund
(1) This regulation applies if:
(a) a trustee receives a request under regulation 7A.03C within the time allowed under subregulation 7A.03F (1); and
(b) paragraph 7A.03G (2) (b) does not apply to the request.
(2) The trustee must give to the non-member spouse a written notice:
(a) confirming that the non-member spouse has an interest in the fund; and
(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.03J Rolling over or transferring the non-member spouse's interest
(1) This regulation applies if a trustee rolls over or transfers the withdrawal benefit from the non-member spouse interest:
(a) to give effect to a request under regulation 7A.03D; or
(b) on the trustee's initiative under subregulation 7A.03H (1).
(2) The trustee must roll over or transfer the amount as follows:
(a) if the rollover or transfer is to give effect to a request under regulation 7A.03D, 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 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);
(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) The trustee must give a notice to the non-member spouse, within 28 days after the amount is rolled over or transferred, stating:
(a) that the benefits have been rolled over or transferred; and
(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
(c) the amount that was rolled over or transferred.
7A.03K Paying a lump sum
(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) The trustee must pay the lump sum within:
(a) 90 days after receiving the request under regulation 7A.03E; or
(b) any longer period allowed by the Regulator.
(3) The trustee 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.