Superannuation Industry (Supervision) Regulations 1994

PART 7A - SUPERANNUATION INTERESTS SUBJECT TO PAYMENT SPLIT  

Division 7A.1A - Options for trustee in relation to interests  

REGULATION 7A.03B   TRUSTEE MAY CREATE A NEW INTEREST  

7A.03B(1)   [Trustee ' s power to create interest]  

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.

7A.03B(2)   [Continuation of interest]  

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 .

7A.03B(3)   [Value of benefits in interest]  

Subject to subregulation (4), the value of the benefits in the non-member spouse interest must be:


(a) if:


(i) the payment split is a base amount payment split; and

(ii) an adjusted base amount applies in relation to the non-member spouse when the interest is created;
the adjusted base amount allocated to the non-member spouse less the amount of any fees payable by the non-member spouse in respect of the payment split; or


(b) if:


(i) the payment split is a base amount payment split; and

(ii) an adjusted base amount does not apply in relation to the non-member spouse when the interest is created;
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 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 an accumulation interest in the growth phase, other than a partially-vested accumulation interest, to which subparagraph (i) does not apply - the amount in relation to the interest at the time when the new interest is created, determined in the way in which a court would determine an amount 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

(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 the way in which a court would determine an amount 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.

7A.03B(4)   [Value of withdrawal benefit]  

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 new interest is created.

7A.03B(5)   [Value of inter-spouse interest reduced]  

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.

7A.03B(6)   [Proportions taken from benefits]  

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 interest was created.

7A.03B(6A)   [Benefits included in interest]  

The benefits held in the non-member spouse interest are:


(a) if the original interest is in the growth phase - 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; and


(b) if the original interest is an allocated pension, market linked pension or account-based pension - unrestricted non-preserved benefits.

7A.03B(7)   [Notice of split]  

At the time that the payment split notice is given or, if a payment split notice is not required, within 28 days after the later of:


(a) the operative time; and


(b) the time when the trustee creates the non-member interest;

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


(c) that the new interest has been created; and


(d) that the value of the original interest has been reduced; and


(e) the amount of the non-member spouse interest.




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