12Payments to member spouse that are not splittable payments (Act s 90XE, s 90YG)

#### 12 Payments to member spouse that are not splittable payments (Act s 90XE, s 90YG) (1) For subsections 90XE(2) and 90YG(2) of the Act, each of the following payments in respect of a superannuation interest of a member spouse is not a splittable payment: (a) a payment of benefits to the member spouse that is made following a determination, under subregulation 6.19A(1) of the SIS Regulations or subregulation 4.22A(1) of the RSA Regulations, that a condition of release of the benefits on a compassionate ground has been satisfied; (b) a payment to the member spouse that is made because the member spouse is taken to be in severe financial hardship; (c) a pension payment to the member spouse that is paid on the basis of temporary incapacity (within the meaning of regulation 6.01 of the SIS Regulations), other than a payment that is: (i) one of a series of payments of that kind that have been paid to the member spouse for a period of at least 2 years and is made more than 2 years after the first such payment of that series; or (ii) a payment to which paragraph (ea) applies; or (iii) a payment from a lifetime pension; (d) if the superannuation interest is in a superannuation fund that is not a regulated superannuation fund—a payment to the member spouse that is made on compassionate grounds as provided by the governing rules of the plan; (da) if the superannuation interest is in a superannuation annuity that is a deferred annuity—a payment to the member spouse that is made on compassionate grounds under a term of the annuity; (e) if the superannuation interest is in the superannuation scheme constituted by the Superannuation Act 1976 or the Superannuation Act 1990—a payment to the member spouse that is made: (i) during any period in which the member spouse’s health is being assessed for the purpose of determining the member spouse’s eligibility for payment on the ground that the member spouse is totally and permanently incapacitated; or (ii) because the member spouse’s salary or other remuneration, or hours of employment, have been reduced because of ill health; (ea) if the superannuation interest is in the superannuation scheme continued in existence by the Superannuation (State Public Sector) Act 1990 (Qld)—a pension payment to the member spouse that is: (i) an income protection benefit paid under section 50 of the Participation Schedule; or (ii) an incapacity benefit to which the member spouse is entitled under paragraph 136(b) of the Participation Schedule; or (iii) an incapacity pension to which the member spouse is entitled under paragraph 199(b) of the Participation Schedule; Note: In 2022, the scheme continued in existence by the Superannuation (State Public Sector) Act 1990 (Qld) was known as the Australian Retirement Trust. (f) if the superannuation interest is in an account within the meaning of the Small Superannuation Accounts Act 1995—a payment to the member spouse from the account, if: (i) in accordance with a superannuation agreement, flag lifting agreement or splitting order that has been served on the trustee of the account, the trustee has opened a separate account under the Small Superannuation Accounts Act 1995 for the non‑member spouse, and has transferred an amount from the member spouse’s account to that separate account; and (ii) but for the operation of this paragraph, the non‑member spouse would have been entitled to be paid an amount in respect of the payment. > Note: This regulation prescribes the kinds of payments that are not splittable payments. Generally, any of these kinds of payments in respect of a member spouse’s superannuation interest will not be a splittable payment (see subsection 90XE(2) or 90YG(2) of the Act). (2) In this regulation: > severe financial hardship has the meaning given by subregulation 6.01(5) of the SIS Regulations.