Part 5Determination of amount in relation to certain superannuation interests

## Part 1—Preliminary #### 1 Name of Regulations These Regulations are the Family Law (Superannuation) Regulations 2001. #### 3 Definitions In these Regulations, unless the contrary intention appears: > accumulation interest means a superannuation interest, or a component of a superannuation interest, that is not a defined benefit interest or a small superannuation accounts interest. > Act means the Family Law Act 1975. > adjusted base amount, in relation to a non‑member spouse at a particular date, means the base amount allocated to the non‑member spouse, adjusted at that date in accordance with Division 6.1A. > allocated annuity means an annuity that is paid, within a range of minimum and maximum payments, from an identifiable lump sum and includes an annuity that arises under a contract that meets the standards of subregulation 1.05(4) of the SIS Regulations. > allocated pension means a pension paid, within a range of minimum and maximum payments, from an identifiable lump sum, including: (a) a pension provided under rules of a superannuation fund that meet the standards of subregulation 1.06(4) of the SIS Regulations; and (b) a pension provided under terms and conditions of an RSA that meet the standards of subregulation 1.07(2) of the RSA Regulations. > annuity provider means a person, body or organisation that has entered into a contract to provide an annuity. > constitutionally protected fund has the meaning given by subsection 995‑1(1) of the Income Tax Assessment Act 1997. > Deed means the trust Deed as existing at the time this definition commences governing the scheme continued in existence under section 5 of the Superannuation (State Public Sector) Act 1990 (Qld). > deferred annuity means an annuity that is not presently payable. > defined benefit interest has the meaning given by regulation 5. > exempt public sector superannuation scheme has the same meaning as in the SIS Act. > fixed term annuity means an annuity that: (a) is not a market linked annuity; and (b) is paid for a fixed period. > Government Division Rules means the Division Rules (within the meaning of the Deed) as existing at the time this definition commences that relate to the Government Division referred to in clause 2.1 of the Deed. > growth phase, in relation to a superannuation interest (other than a small superannuation accounts interest) of a member spouse, has the meaning given by regulation 6 or 7. > Judges’ Pensions Act Scheme means the scheme constituted by the Judges’ Pensions Act 1968 for the provision of retirement and other benefits to and in respect of Judges, within the meaning of that Act. > lifetime pension: a benefit in respect of a superannuation interest, or a component of a superannuation interest, of a member spouse in an eligible superannuation plan is a lifetime pension of the member spouse if the benefit is payable as a pension for the life of the member spouse. > Note: Regulation 11A also affects the meaning of lifetime pension. > market linked annuity means an annuity, other than an allocated annuity, that: (a) is paid from an identifiable lump sum; and (b) arises under a contract that meets the standards of subregulation 1.05(10) of the SIS Regulations. > market linked pension means a pension, other than an allocated pension, paid from an identifiable lump sum that meets the standards of subregulation 1.06(8) of the SIS Regulations or subregulation 1.07(3A) of the RSA Regulations. > member information statement, in relation to a member of an eligible superannuation plan, means a statement issued periodically to the member by the trustee of the plan that sets out information about the value of the member’s interest in the plan (for example, the member’s account balance, share in the plan or withdrawal benefit) at a particular date. > member’s retirement age, for a member who has a defined benefit interest in an eligible superannuation plan, means: (a) subject to paragraphs (b) and (c), the latest retirement age for the member specified in the governing rules of the plan; or (b) if the latest retirement age for the member specified in the governing rules of the plan is more than 65 years, or no retirement age is specified in the governing rules of the plan—65 years; or (c) if the Minister has, under regulation 30, approved a retirement age as the retirement age for members of the plan, or an identifiable class of members of the plan that includes the member—the approved age. > Note: Regulation 30 authorises the Minister to approve as the retirement age for members, or an identifiable class of members, who hold a defined benefit interest in an eligible superannuation plan, an age other than: (a) the retirement age specified in the governing rules of the plan; or (b) the age of 65 years. > net earnings, in relation to a superannuation interest in a regulated superannuation fund, approved deposit fund or RSA to which the financial product disclosure provisions of the Corporations Regulations 2001 (being the provisions in Part 7.9 of those Regulations) apply, has the meaning given by regulation 7.9.01 of those Regulations. > partially vested accumulation interest has the meaning given by regulation 9. > Participation Schedule means the part of the Government Division Rules known as the Participation Schedule. > payment phase, in relation to a superannuation interest (other than a small superannuation accounts interest) of a member spouse, has the meaning given by regulation 8. > pension means a pension, within the meaning of section 10 of the SIS Act, payable from an eligible superannuation plan (other than an account within the meaning of the Small Superannuation Accounts Act 1995). > percentage‑only interest has the meaning given by regulation 9A. > public sector superannuation scheme has the same meaning as in the SIS Act. > relevant date, for the purpose of determining, under Part 5, an amount in relation to a superannuation interest that is subject to a payment split, means: (a) in relation to a payment split under a superannuation agreement or flag lifting agreement: (i) the date agreed on for that purpose by the parties to the agreement; or (ii) if no date is agreed on by the parties to the agreement and the agreement is dated—the date shown on the agreement; or (iii) if no date is agreed on by the parties to the agreement and the agreement is not dated—the date when a copy of the agreement is served on the trustee of the relevant eligible superannuation plan; and (b) in relation to a payment split under a splitting order—the date determined by the court. > RSA Regulations means the Retirement Savings Accounts Regulations 1997. > self managed superannuation fund has the same meaning as in the SIS Act. > SIS Regulations means the Superannuation Industry (Supervision) Regulations 1994. > small superannuation accounts interest means a superannuation interest in an account within the meaning of the Small Superannuation Accounts Act 1995. > superannuation annuity has the meaning given by subsection 995‑1(1) of the Income Tax Assessment Act 1997. > superannuation contributions surcharge means superannuation contributions surcharge under the Superannuation Contributions Tax (Assessment and Collection) Act 1997. > superannuation fund has the same meaning as in the SIS Act. > unflaggable interest has the meaning given by regulation 10A. > unsplittable interest has the meaning given by regulation 11. > withdrawal benefit: (a) for a member of a regulated superannuation fund, an exempt public sector superannuation scheme or an approved deposit fund, has the meaning given by subregulation 1.03(1) of the SIS Regulations; and (b) for a member of an RSA, has the meaning given by subregulation 1.03(1) of the RSA Regulations; and (c) for a member who has a small superannuation accounts interest, means the balance of the member’s account; and (d) for a member of any other eligible superannuation plan, means the total amount of benefits that would be payable to the member if the member voluntarily ceased to be a member of the plan. #### 4 Expressions used in Part VIIIB or VIIIC of the Act An expression used in these Regulations that is also used in Part VIIIB or VIIIC of the Act has the same meaning as in that Part, to the extent that these Regulations have effect for the purposes of that Part. > Note: See sections 90XD and 90YD of the Act for definitions in Parts VIIIB and VIIIC, respectively, of the Act. #### 5 Meaning of defined benefit interest (1) For the purposes of these Regulations, a defined benefit interest is: (a) subject to subregulation (2), a superannuation interest that a member spouse has in an eligible superannuation plan, being an interest in respect of the whole of which the member spouse is entitled, when benefits in respect of the interest become payable, to be paid a benefit that is, or may be, defined by reference to one or more of the amounts or factors mentioned in subregulation (1A); or (b) subject to subregulation (2), a component of a superannuation interest that a member spouse has in an eligible superannuation plan, being a component in respect of which the member spouse is entitled, when benefits in respect of the interest become payable, to be paid a benefit that is, or may be, defined by reference to one or more of the amounts or factors mentioned in subregulation (1A); or (c) a superannuation interest that: (i) a member spouse has in the scheme provided for by the Australian Defence Force Cover Act 2015; and (ii) is in the payment phase. (1A) For subregulation (1), the amounts and factors are as follows: (a) the amount of: (i) the member spouse’s salary at the date of the termination of the member spouse’s employment, the date of the member spouse’s retirement, or another date; or (ii) the member spouse’s salary averaged over a period; (b) the amount of salary, or allowance in the nature of salary, payable to another person (for example, a judicial officer, a member of the Commonwealth or a State Parliament, a member of the Legislative Assembly of a Territory); (c) a specified amount; (d) specified conversion factors. (2) However, a superannuation interest, or a component of a superannuation interest, is not a defined benefit interest because of paragraph (1)(a) or (b) if: (a) the only benefits payable in respect of the interest or component that are defined by reference to the amounts or factors mentioned in subregulation (1A) are benefits payable on death or invalidity; and (b) there are no other circumstances in which benefits payable in respect of the interest or component are, or could have been, defined by reference to the amounts or factors mentioned in subregulation (1A). > Note 1: Subregulation (2) has the effect that paragraphs (1)(a) and (b) do not apply to a superannuation interest or component if defined benefit factors: (a) are only used to calculate death or invalidity benefits in respect of the interest or component; and (b) would not be used to calculate benefits in respect of the interest or component that would become payable in other circumstances, such as on age retirement or the termination of employment. > Note 2: However, subregulation (2) does not prevent a superannuation interest or component mentioned in paragraph (1)(c) being a defined benefit interest for the purposes of these Regulations (even if paragraph (1)(a) or (b) could also apply to the superannuation interest or component). > Note: Example 1: Benefits in respect of a superannuation interest of a member spouse are payable on retirement based on the balance of the member’s account. However, on death or invalidity the benefit is to be defined by reference to amounts or factors mentioned in subregulation (1A). The member retires on invalidity and the benefits that become payable to the member are then defined by reference to those amounts or factors. The superannuation interest is not a defined benefit interest because defined benefit factors only applied, and could only have applied, in the circumstance of the death or invalidity of the member spouse. > Note: Example 2: Benefits in respect of a component of a superannuation interest of a member spouse are payable in a range of circumstances, including death, invalidity or retirement, and are to be defined by reference to amounts or factors mentioned in subregulation (1A). The component is a defined benefit interest because death or invalidity are not the only circumstances in which defined benefit factors are, or could be, applied to calculate the benefits in respect of the interest. #### 6 Meaning of growth phase—superannuation interests in regulated superannuation funds, approved deposit funds and RSAs (1) This regulation applies to a superannuation interest of a member spouse in any of the following eligible superannuation plans: (a) a regulated superannuation fund; (b) an approved deposit fund; (c) an RSA. (2) For these Regulations, the superannuation interest is taken to be in the growth phase at a particular date if the member spouse satisfies the requirements of subregulation (3), (4) or (5) at that date. (3) A member spouse satisfies the requirements of this subregulation at a particular date if the member spouse has not satisfied a relevant condition of release at that date. (4) A member spouse satisfies the requirements of this subregulation at a particular date if the member spouse has satisfied a relevant condition of release at that date, but no benefit has been paid in respect of the superannuation interest, and no action has been taken by or for the member spouse under the governing rules of the plan to cash any benefit that the member spouse is entitled to be paid as a result of satisfying the condition of release. (5) A member spouse satisfies the requirements of this subregulation at a particular date if: (a) the member spouse has satisfied a relevant condition of release at that date; and (b) a benefit (other than a benefit that is paid as a pension) has been paid to or for the benefit of the member spouse or, if the member spouse has died, to his or her legal personal representative, but no action has been taken by or for the member spouse, or his or her legal personal representative, under the governing rules of the plan to receive any other benefit that the member spouse, or his or her estate, is entitled to be paid as a result of satisfying the condition of release. (6) In this regulation: > relevant condition of release means: (a) for a member spouse who has a superannuation interest in a regulated superannuation fund—a condition of release mentioned in item 101, 102, 103, 106 or 108 of Schedule 1 to the SIS Regulations; and (b) for a member spouse who has a superannuation interest in an approved deposit fund—a condition of release mentioned in item 201, 202, 203 or 206 of Schedule 1 to the SIS Regulations; and (c) for a member spouse who has a superannuation interest in an RSA—a condition of release mentioned in item 101, 102, 103, 106 or 107 of Schedule 2 to the RSA Regulations. #### 7 Meaning of growth phase—superannuation interests in other eligible superannuation plans (1) This regulation applies to a superannuation interest of a member spouse in any of the following eligible superannuation plans: (a) a superannuation annuity; (b) a superannuation fund other than a regulated superannuation fund. (2) For these Regulations, the superannuation interest is taken to be in the growth phase at a particular date if, at that date: (a) a releasing event in relation to the member spouse has not occurred; or (b) a releasing event in relation to the member spouse has occurred, but no action has been taken by or for the member spouse under the governing rules of the plan to receive any benefit that the member spouse is entitled to be paid as a result of the occurrence of the releasing event; or (c) a releasing event in relation to the member spouse has occurred and a benefit (other than a benefit that is paid as a pension) has been paid to or for the benefit of the member spouse or, if the member spouse has died, to his or legal personal representative, but no action has been taken by or for the member spouse, or his or her legal personal representative, under the governing rules of the plan to receive any other benefit that the member spouse, or his or her estate, is entitled to be paid as a result of the occurrence of the releasing event. (3) For this regulation, a releasing event is taken to have occurred in relation to a member spouse if: (a) the member spouse has retired; or (b) the member spouse has died; or (c) as a result of the member spouse’s ill health (whether physical or mental), the member spouse: (i) has ceased to be gainfully employed (including if the member spouse has ceased temporarily to receive any gain or reward under a continuing arrangement for the member spouse to be gainfully employed); and (ii) is unlikely, because of the ill health, ever again to engage in gainful employment for which the member spouse is reasonably qualified by education, training or experience; or (d) the member spouse has turned 65; or (e) in the case of a member spouse whose employer has contributed to the member spouse’s eligible superannuation plan in relation to the member spouse—the member spouse has ceased his or her employment with the employer. (4) In paragraph (3)(e): > employer includes any associates, within the meaning of section 12 of the SIS Act, of the employer. #### 8 Meaning of payment phase For these Regulations, a superannuation interest (other than a small superannuation accounts interest) of a member spouse in an eligible superannuation plan is taken to be in the payment phase at a particular date if the superannuation interest is not in the growth phase at that date. #### 9 Meaning of partially vested accumulation interest (1) For these Regulations, an accumulation interest that a member spouse has as a member of an eligible superannuation plan is a partially vested accumulation interest if subregulation (2) or (3) applies in relation to the interest. (2) This subregulation applies in relation to the superannuation interest if the withdrawal benefit in relation to the member spouse at a particular date is less than the total amount notionally or actually allocated to the member spouse at that date, except if the withdrawal benefit is less than that notional or actual amount because of any of the following reasons: (a) the trustee of the plan has been assessed to be liable to pay superannuation contributions surcharge in respect of the member spouse, and the trustee has not debited the amount notionally or actually allocated to the member spouse in respect of that liability; (b) insurance costs have been charged against the member spouse’s benefits in the plan; (c) any other fees, taxes or charges will be charged against the member spouse’s benefits when the member spouse ceases to be a member of the plan. (3) This subregulation applies in relation to the superannuation interest if the benefits to which the member spouse is or may be entitled, on voluntarily ceasing to be a member of the eligible superannuation plan, may include an additional benefit that is calculated by reference to the amount that has been credited, under the governing rules of the plan, to the member spouse in respect of contributions that have been made by, or in respect of, the member spouse. #### 9A Meaning of percentage‑only interest (Act s 90XD, s 90YD) (1) Subject to subregulation (2), for the definitions of percentage‑only interest in sections 90XD and 90YD of the Act, each of the following superannuation interests is prescribed: (b) a superannuation interest in the scheme constituted by the Judges’ Pensions Act 1953 (NSW); (c) a superannuation interest to which regulation 9B applies; (ca) a superannuation interest in the scheme constituted by the Judges (Pensions and Long Leave) Act 1957 (Qld); (cb) a superannuation interest in the scheme constituted by the Governors (Salary and Pensions) Act 2003 (Qld); (d) a superannuation interest in the scheme constituted by the Judges’ Contributory Pensions Act 1968 (Tas); (e) a superannuation interest in the Parliamentary Retiring Benefits Fund continued, under regulation 50 of the Retirement Benefits (Parliamentary Superannuation) Regulations 2012 (Tas), as a subfund of the Retirement Benefits Fund; (f) a superannuation interest in a superannuation annuity. (2) A superannuation interest mentioned in paragraph (1)(ca), (d) or (e) is not a percentage‑only interest if, immediately before the commencement day of the paragraph in which the interest is mentioned: (a) either: (i) the interest is covered by a superannuation agreement or a flag lifting agreement that is in force and provides for a payment split; or (ii) the interest is an interest to which subsection 90XJ(5) or 90YN(5) of the Act applies; or (b) the interest is covered by a splitting order; or (c) the non‑member spouse has served a waiver notice on the trustee under section 90XZA or 90YZQ of the Act in respect of the interest. (3) Subregulation (2) applies only in relation to the agreement, order or notice. (4) In subregulation (2): > commencement day, for a paragraph in which a superannuation interest is mentioned, means: (a) for paragraph (1)(ca)—the day on which that paragraph commenced; and (b) for paragraphs (1)(d) and (e)—2 May 2003. #### 9B Meaning of percentage‑only interest—parliament 70 category under the Deed (1) This regulation applies to a superannuation interest held by a person by belonging to the parliament 70 category under Chapter 9 of the Government Division Rules if: (a) the interest is held by a person who has received salary as a member of the Assembly for an aggregate period of less than 8 years; or (b) all of the following apply: (i) the interest is held by a person who has received salary as a member of the Assembly for an aggregate period of at least 8 years; (ii) after the person first began receiving salary as a member but before the person had completed an aggregate period of service of at least 8 years, the interest became subject to a payment split; (iii) subregulation (2) does not apply to the payment split; or (c) all of the following apply: (i) the interest is a percentage‑only interest under paragraph (b) or this paragraph; (ii) while the interest is a percentage‑only interest under either of those paragraphs, the interest becomes subject to a second or later payment split; (iii) subregulation (2) does not apply to at least 1 of the payment splits in relation to the interest. (2) This subregulation applies to a payment split if: (a) for a payment split under a superannuation agreement or flag lifting agreement—the agreement has been terminated or set aside; or (b) for a payment split under a splitting order—the order has been set aside; or (c) an amount has been paid under subsection 363(2) of the Participation Schedule or subsection 25G(2) of the repealed Act in relation to the entitlement under the applicable superannuation agreement, flag lifting agreement or splitting order; or (d) the person for whose benefit the applicable superannuation agreement, flag lifting agreement or splitting order was made has elected to be paid a lifetime pension under subsection 367(4) of the Participation Schedule or subsection 25K(4) of the repealed Act in relation to the entitlement under the agreement or order. (3) In this regulation: > Assembly means the Legislative Assembly of Queensland. > repealed Act means the Parliamentary Contributory Superannuation Act 1970 (Qld). #### 10 Meaning of trustee (Act s 90XD, s 90YD) (1) This regulation applies for paragraph (b) of the definitions of trustee in sections 90XD and 90YD of the Act. (2) Each of the following persons is identified as a trustee of the Judges’ Pensions Act Scheme: (a) the General Manager of Fair Work Australia for a member of the Scheme who is: (i) the President (or a former President) of Fair Work Australia; or (ii) a Deputy President (or a former Deputy President) of Fair Work Australia who was a Presidential Member of the Australian Industrial Relations Commission; or (iii) a former Presidential Member of the Australian Industrial Relations Commission; or (iv) a spouse of a person mentioned in subparagraph (i), (ii), or (iii); (b) in relation to any other member of the Scheme—the Secretary of the Department of Finance and Deregulation. (3) The Parliamentary Retiring Allowances Trust established under the Parliamentary Contributory Superannuation Act 1948 is identified as the trustee of the scheme constituted by that Act. (4) An RSA provider that has accepted contributions to an RSA is identified as the trustee of that RSA. (5) The Commissioner of Taxation is identified as the trustee of an account within the meaning of the Small Superannuation Accounts Act 1995. (5A) An annuity provider that has entered into a contract with a person to provide a superannuation annuity to that person is identified as the trustee of that superannuation annuity. (5B) CSC is identified as the trustee of the scheme constituted by the Defence Force (Superannuation) (Productivity Benefit) Determination 1988 made under subsection 52(1) of the Defence Act 1903. (6) In this regulation: > CSC has the meaning given by section 4 of the Governance of Australian Government Superannuation Schemes Act 2011. > Presidential Member has the meaning given by section 4 of the Workplace Relations Act 1996. > RSA provider has the same meaning as in the Retirement Savings Accounts Act 1997. #### 10A Meaning of unflaggable interest (Act s 90XD, s 90YD) For the definitions of unflaggable interest in sections 90XD and 90YD of the Act, a superannuation interest of a member spouse that is in the payment phase is prescribed. #### 11 Meaning of unsplittable interest (Act s 90XD, 90YD) (1) Subject to subregulation (2), for the definitions of unsplittable interest in sections 90XD and 90YD of the Act, a superannuation interest of a member spouse described in subregulation (1A) or (1B) is prescribed. > Note: This regulation prescribes the kinds of superannuation interests that are unsplittable interests. An unsplittable interest cannot be the subject of a payment split under a superannuation agreement, a flag lifting agreement or a splitting order: see Parts VIIIB and VIIIC of the Act. (1A) For subregulation (1), the superannuation interest of the member spouse must be: (a) an interest other than one in respect of which the whole or remaining part of the benefits are being paid to the member spouse as: (i) a lifetime pension or fixed‑term pension that the member is no longer entitled to commute; or (ii) a lifetime annuity or fixed‑term annuity; and (b) an interest with a withdrawal benefit in relation to the member spouse of less than $5 000. (1B) For subregulation (1), the superannuation interest of the member spouse must be an interest in respect of which: (a) the whole or remaining part of the benefits are being paid to the member spouse as: (i) a lifetime pension or fixed‑term pension that the member is no longer entitled to commute; or (ii) a lifetime annuity or fixed‑term annuity; and (b) the amount of the annual benefit payable to the member is less than $2 000. (2) This regulation does not apply to any of the following superannuation interests: (a) a superannuation interest in the Judges’ Pensions Act Scheme; (b) a superannuation interest in the scheme provided under the Judges’ Pensions Act 1971 of South Australia; (c) a superannuation interest in the scheme constituted by the Parliamentary Contributory Superannuation Act 1948. (3) To avoid doubt, an interest that is not covered by this regulation is not an unsplittable interest only because payments in respect of that interest are not splittable payments. #### 11A Meaning of lifetime pension etc. To avoid doubt, for the purposes of these Regulations, a benefit in respect of a superannuation interest, or a component of a superannuation interest, of a member spouse in an eligible superannuation plan that is paid as a pension is not prevented from being a lifetime pension of the member spouse, or a pension payable for the life of a member spouse, merely because: (a) the benefit is paid upon the retirement of the member spouse (including, but not limited to, retirement on the basis of invalidity); and (b) under the governing rules of the plan, the payments may be varied (including by being reduced to nil), suspended or cancelled. ## Part 2—Payments that are not splittable payments ### Division 2.1—General #### 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. #### 13 Payments after death of 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 made after the death of a member spouse in respect of a superannuation interest of the member spouse is not a splittable payment: (a) a payment to a reversionary beneficiary who is a child in relation to the member spouse if, at the date of the payment, the child has not turned 18; (b) a payment to a reversionary beneficiary who is a child in relation to the member spouse if: (i) immediately before the death of the member spouse, the child was dependent on the member spouse; and (ii) at the date of the payment, the child has turned 18; and (iii) the payment is made to enable the child to complete his or her education or, if the child has special needs because of a physical or intellectual disability, to provide maintenance and meet expenses in respect of those needs; (c) a payment to a reversionary beneficiary for the benefit of a child in relation to the member spouse, if the requirements of paragraph (a) or (b) are satisfied in relation to the child and the payment. (2) In this regulation: > child, in relation to a member spouse who has a superannuation interest in an eligible superannuation plan, means: (a) a child of the member spouse, within the meaning of section 60F of the Act; or (b) a child of the member spouse under the governing rules of the plan; or (c) a child who has been determined by the trustee of the plan, under the governing rules of the plan, to be a child of the member spouse; or (d) a child for whom the member spouse had, at the time of his or her death, responsibility for the day‑to‑day care, welfare and development under an order made under Part VII of the Act or Part 5 of the Family Court Act 1997 of Western Australia, or under a corresponding law of a foreign country. ### Division 2.2—Particular circumstances in which payments are not splittable payments #### 14 Circumstances in which payments are not splittable payments A payment in respect of a superannuation interest of a member spouse, being a superannuation interest to which a particular superannuation agreement, flag lifting agreement or splitting order applies, is not a splittable payment for the purposes of applying Part VIIIB or VIIIC of the Act to that agreement or order, if the payment is made after the requirements of this Division have been satisfied in relation to the non‑member spouse’s entitlement under the agreement or order in respect of the superannuation interest. #### 14A Meaning of certain expressions for Division 2.2 For this Division: (a) relevant condition of release, in relation to a superannuation interest, means: (i) if the superannuation interest is in a regulated superannuation fund, an exempt public sector superannuation scheme—a condition of release mentioned in item 101, 102, 103 or 106 of Schedule 1 to the SIS Regulations; and (ii) if the superannuation interest is in an approved deposit fund—a condition of release mentioned in item 201, 202, 203 or 206 of Schedule 1 to the SIS Regulations; and (iii) if the superannuation interest is in an RSA—a condition of release mentioned in item 101, 102, 103 or 106 of Schedule 2 to the RSA Regulations; and (iv) if the superannuation interest is in a superannuation annuity—a condition of release mentioned in item 201, 202, 203 or 206 of Schedule 1 to the SIS Regulations; and (b) a non‑member spouse satisfies a relevant 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, 103, 201 or 203 of Schedule 1 to the SIS Regulations to a non‑member spouse, a reference in: (i) the definition of permanent incapacity in subregulation 6.01(2) of the SIS Regulations; and (ii) subregulation 6.01(7) of the SIS Regulations; to a member is taken to be a reference to the non‑member spouse; and (d) in the application of item 101 or 103 of Schedule 2 to the RSA Regulations to a non‑member spouse, a reference in: (i) the definition of permanent incapacity in subregulation 4.01(2) of the RSA Regulations; and (ii) subregulation 4.01(4) of the RSA Regulations; to an RSA holder is taken to be a reference to the non‑member spouse. #### 14F New interest created or amount transferred or rolled over or paid, under SIS Regulations or RSA Regulations, in satisfaction of non‑member spouse’s entitlement (1) The requirements of this Division are satisfied in relation to a non‑member spouse’s entitlement under a particular superannuation agreement, flag lifting agreement or splitting order in respect of a superannuation interest that is not a percentage‑only interest if the requirements of subregulation (2) or (3) are satisfied. (2) The requirements of this subregulation are satisfied if the trustee of the relevant eligible superannuation plan has, under the payment split provisions of the SIS Regulations, done any of the following things: (a) created a new interest in the plan for the non‑member spouse; (b) transferred or rolled over an amount equal to the value of the benefit that the non‑member spouse would be required to have if a new interest had been created for the non‑member spouse under the payment split provisions of the SIS Regulations; (c) paid to the non‑member spouse the amount to which he or she is entitled in respect of the superannuation interest at the time of the payment. (3) The requirements of this subregulation are satisfied if the trustee of the relevant eligible superannuation plan has, under the payment split provisions of the RSA Regulations, done any of the following things: (a) opened a new RSA for the non‑member spouse; (b) transferred or rolled over an amount equal to the value that the non‑member spouse would be required to have if a new RSA had been opened for the non‑member spouse under the payment split provisions of the RSA Regulations; (c) paid to the non‑member spouse an amount that is at least the amount to which the non‑member spouse is entitled in respect of the superannuation interest at the time of the payment. (4) In this regulation: > payment split provisions of the RSA Regulations means the provisions of the RSA Regulations (other than Division 4A.4) dealing with superannuation interests that are subject to a payment split. > payment split provisions of the SIS Regulations means the provisions of the SIS Regulations (other than Division 7A.3) dealing with superannuation interests that are subject to a payment split. #### 14G New interest created or amount transferred or rolled over or paid by trustee (other than under regulation 14F), or separate entitlement arising, in satisfaction of non‑member spouse’s entitlement under agreement or order (1) This regulation applies to a superannuation interest (including an interest in respect of which benefits are payable as an allocated pension or a market linked pension) if the interest: (a) is not a percentage‑only interest; and (b) is in a superannuation fund or an approved deposit fund. (2) The requirements of this Division are satisfied in relation to a non‑member spouse’s entitlement under a particular superannuation agreement, flag lifting agreement or splitting order in respect of a superannuation interest of a member spouse if the requirements of subregulation (3), (4), (5), (5A), (6) or (6A) are satisfied. (3) Subject to subregulation (7), the requirements of this subregulation are satisfied if: (a) the interest is not a defined benefit interest in a self managed superannuation fund; and (b) the trustee of the relevant eligible superannuation plan has, in respect of the non‑member spouse’s entitlement under the agreement or order and under the governing rules of the plan, done either of the following things: (i) created a new interest in the plan for the non‑member spouse with a value of at least the value of the non‑member spouse’s entitlement in respect of the superannuation interest at the time the new interest is created; (ii) transferred or rolled over to another superannuation fund or an RSA an amount, to be held for the benefit of the non‑member spouse, with a value of at least the value of the non‑member spouse’s entitlement in respect of the superannuation interest at the time the amount is transferred or rolled over. (4) Subject to subregulation (7), the requirements of this subregulation are satisfied if: (a) the interest is a defined benefit interest in a self managed superannuation fund; and (b) the trustee of the plan has, in respect of the non‑member spouse’s entitlement under the agreement or order and under the governing rules of the plan, transferred or rolled over to another superannuation fund or an RSA an amount, to be held for the benefit of the non‑member spouse, with a value of at least the value of the non‑member spouse’s entitlement in respect of the superannuation interest at the time the amount is transferred or rolled over. (5) Subject to subregulation (7), the requirements of this subregulation are satisfied if: (a) the interest is in a regulated superannuation fund, an exempt public sector superannuation scheme or an approved deposit fund; and (b) the non‑member spouse has satisfied a relevant condition of release in relation to the interest; and (c) the trustee of the plan has, in respect of the non‑member spouse’s entitlement under the agreement or order, paid to the non‑member spouse an amount equal to the value of the non‑member spouse’s entitlement in respect of the superannuation interest at the time of the payment. (5A) Subject to subregulation (7), the requirements of this subregulation are satisfied if: (a) the interest is in a regulated superannuation fund, an exempt public sector superannuation scheme or an approved deposit fund; and (b) at the operative time in relation to the agreement or order, the member spouse was being paid a pension in respect of the interest; and (c) the trustee of the plan has, in respect of the non‑member spouse’s entitlement under the agreement or order, paid to the non‑member spouse an amount equal to the value of the non‑member spouse’s entitlement in respect of the superannuation interest at the time of the payment. (6) Subject to subregulation (7), the requirements of this subregulation are satisfied if: (a) the interest is in a superannuation fund that is not a regulated superannuation fund or an exempt public sector superannuation scheme; and (b) the trustee of the plan has, in respect of the non‑member spouse’s entitlement under the agreement or order, paid to the non‑member spouse an amount equal to the value of the non‑member spouse’s entitlement in respect of the superannuation interest at the time of the payment. (6A) Subject to subregulation (7A), the requirements of this subregulation are satisfied if: (a) the interest is in a public sector superannuation scheme (the original scheme); and (b) at or after the operative time in relation to the agreement or order, and under the governing rules of the original scheme or under the governing rules of another public sector superannuation scheme, a separate entitlement to benefits has arisen for the non‑member spouse in respect of the non‑member spouse’s entitlement under the agreement or order, being a separate entitlement with a value of at least the value of the non‑member spouse’s entitlement in respect of the superannuation interest at the time the separate entitlement arose. (7) Subregulations (3), (4), (5), (5A) and (6) do not apply if: (a) the superannuation interest is a defined benefit interest; and (b) the governing rules of the plan provide for the reduction of the benefit payable to any other member of the plan (other than the member spouse or a reversionary beneficiary of the member spouse) as a result of the creation of the new interest for the non‑member spouse, transfer or rollover of an amount to be held for the benefit of the non‑member spouse, or payment of the amount to the non‑member spouse. (7A) Subregulation (6A) does not apply if: (a) the superannuation interest is a defined benefit interest; and (b) the governing rules of the original scheme provide for the reduction of the benefit payable to any other member of the scheme (other than the member spouse or a reversionary beneficiary of the member spouse) as a result of the non‑member spouse’s separate entitlement. (8) For this regulation, the value in respect of a non‑member spouse’s entitlement in respect of a superannuation interest at the time (the termination time) when the trustee carries out an action described in any of subregulations (3) to (6), or a separate entitlement arises for the non‑member spouse as described in subregulation (6A), is: (a) if a base amount applies in relation to the interest—the value under subregulation (9) or (10); or (b) if, under subparagraph 90XJ(1)(c)(iii) or 90YN(1)(c)(iii), or paragraph 90XT(1)(b) or 90YY(1)(b), of the Act, a specified percentage is to apply to all splittable payments in respect of the interest—the value under subregulation (11). (9) For paragraph (8)(a), if: (a) the termination time occurs before the first payment that, except for the operation of this regulation, would be a splittable payment becomes payable in respect of the superannuation interest; or (b) paragraph (a) does not apply and one or more payments that, except for the operation of this regulation, would be splittable payments become payable in respect of the superannuation interest after the termination time, and the amount of the first such payment would be more than: (i) if an adjusted base amount is applicable to the non‑member spouse at the termination time—the sum of the adjusted base amount and the amount of any fees payable by the non‑member spouse under regulation 59; or (ii) in any other case—the sum of the base amount applicable to the non‑member spouse at the termination time and the amount of any fees payable by the non‑member spouse under regulation 59; the value at the termination time of the non‑member spouse’s entitlement in respect of the interest is, as the case requires: (c) the base amount specified by, or calculated in accordance with a method specified by, the relevant agreement or order; or (d) the base amount allocated to the non‑member spouse under subsection 90XT(4) or 90YY(5) of the Act; or (e) the adjusted base amount applicable to the non‑member spouse at the termination time. (10) For paragraph (8)(a), if paragraph (9)(a) or (b) does not apply in relation to the superannuation interest, the value at the termination time of the non‑member spouse’s entitlement in respect of the interest is:  where: > SP(prop) is the proportion of each second and subsequent splittable payment that the non‑member spouse would be entitled to be paid under Part 6. > V is: (a) for a superannuation interest in a self managed superannuation fund—the value of the interest at the termination time, determined by the method that the court would consider appropriate if it were determining the value of the interest under paragraph 90XT(2)(b) or 90YY(2)(b) (as the case may be) of the Act; and (b) for a superannuation interest other than an interest in a self managed superannuation fund—the value of the superannuation interest, being the amount in relation to the interest at the termination time, determined in accordance with the relevant method set out in Division 5.2, as if references in that Division to ‘the relevant date’ were references to ‘the termination time’. > F is the amount of any fees payable by the non‑member spouse under regulation 59. (11) For paragraph (8)(b), the value at the termination time of the non‑member spouse’s entitlement in respect of the superannuation interest is: (a) if the entitlement is in respect of an interest that is not an accumulation interest (other than a partially vested accumulation interest) or an interest in a self managed superannuation fund—the amount in relation to the interest at the termination time that a court would determine in accordance with Part 5, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse under regulation 59; or (b) if the entitlement is in respect of an accumulation interest (other than a partially vested accumulation interest or an interest in a self managed superannuation fund)—the amount in relation to the interest at the termination time that a court would determine in accordance with regulation 28 and subregulation 31(2A), multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse under regulation 59; or (c) if the entitlement is in respect of an interest in a self managed superannuation fund—the value of the interest at the termination time, determined by the method that the court would consider appropriate if it were determining the value of the interest under paragraph 90XT(2)(b) or 90YY(2)(b) (as the case may be) of the Act, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse under regulation 59. (12) For the avoidance of doubt, nothing in this regulation requires the trustee of an eligible superannuation plan mentioned in paragraph (1)(b) to do any of the things mentioned in subregulation (3), (4), (5), (5A) or (6). #### 14H Amount paid by member spouse in satisfaction of non‑member spouse’s entitlement under agreement or order (1) The requirements of this Division are satisfied in relation to a non‑member spouse’s entitlement under a particular superannuation agreement, flag lifting agreement or splitting order in respect of a superannuation interest of a member spouse if the requirements of subregulation (2) or (3) are satisfied. (2) The requirements of this subregulation are satisfied if: (a) the interest is in a regulated superannuation fund, an exempt public sector superannuation scheme, an approved deposit fund, an RSA or a superannuation annuity; and (b) either of the following has happened: (i) the non‑member spouse has satisfied a relevant condition of release in relation to the interest, and the member spouse has paid to the non‑member spouse an amount in satisfaction of the non‑member spouse’s entitlement in respect of the superannuation interest; (ii) the non‑member spouse has not satisfied a relevant condition of release in relation to the interest, and the member spouse has paid to another regulated superannuation fund, exempt public sector superannuation scheme or an RSA, an amount, to be held for the benefit of the non‑member spouse, in satisfaction of the non‑member spouse’s entitlement in respect of the superannuation interest; and (c) the interest was in the growth phase at the time of the payment; and (d) after the payment mentioned in paragraph (b), a notice in accordance with Form 1 in Schedule 1, signed by the non‑member spouse in respect of the superannuation interest, has been served on the trustee of the plan. (3) The requirements of this subregulation are satisfied if: (a) the interest is in a superannuation fund that is not a regulated superannuation fund or an exempt public sector superannuation scheme; and (b) the member spouse has paid to the non‑member spouse an amount in satisfaction of the non‑member spouse’s entitlement in respect of the superannuation interest; and (c) the interest was in the growth phase at the time of the payment; and (d) after the payment, a notice in accordance with Form 1 in Schedule 1, signed by the non‑member spouse in respect of the superannuation interest, has been served on the trustee of the plan. #### 14N New interest created or amount transferred or rolled over or paid by trustee, or separate entitlement arising, in satisfaction of non‑member spouse’s entitlement under agreement or order (1) This regulation applies to a superannuation interest that is a percentage‑only interest if the interest is in a superannuation fund or an approved deposit fund. (2) The requirements of this Division are satisfied in relation to a non‑member spouse’s entitlement under a particular superannuation agreement, flag lifting agreement or splitting order in respect of a superannuation interest of a member spouse if the requirements of subregulation (3), (4), (4A), (5) or (5A) are satisfied. (3) Subject to subregulation (6), the requirements of this subregulation are satisfied if: (a) the trustee of the relevant eligible superannuation plan has, in respect of the non‑member spouse’s entitlement under the agreement or order and under the governing rules of the plan, done either of the following things: (i) created a new interest in the plan for the non‑member spouse with a value of at least the value of the non‑member spouse’s entitlement in respect of the superannuation interest at the time the new interest is created; (ii) transferred or rolled over to another superannuation fund or an RSA an amount, to be held for the benefit of the non‑member spouse, with a value of at least the value of the non‑member spouse’s entitlement in respect of the superannuation interest at the time the amount is transferred or rolled over; and (b) the interest was in the payment phase at the time the thing was done. (4) Subject to subregulation (6), the requirements of this subregulation are satisfied if: (a) the interest is in a regulated superannuation fund, an exempt public sector superannuation scheme or an approved deposit fund; and (b) the non‑member spouse has satisfied a relevant condition of release in relation to the interest; and (c) the trustee of the plan has, in respect of the non‑member spouse’s entitlement under the agreement or order, paid to the non‑member spouse an amount with a value of at least the non‑member spouse’s entitlement in respect of the superannuation interest at the time of the payment; and (d) the interest was in the payment phase at the time of the payment. (4A) Subject to subregulation (6), the requirements of this subregulation are satisfied if: (a) the interest is in a regulated superannuation fund, an exempt public sector superannuation scheme or an approved deposit fund; and (b) at the operative time in relation to the agreement or order, the member spouse was being paid a pension in respect of the interest; and (c) the trustee of the plan has, in respect of the non‑member spouse’s entitlement under the agreement or order, paid to the non‑member spouse an amount with a value of at least the non‑member spouse’s entitlement in respect of the superannuation interest at the time of the payment. (5) Subject to subregulation (6), the requirements of this subregulation are satisfied if: (a) the interest is in a superannuation fund that is not a regulated superannuation fund or an exempt public sector superannuation scheme; and (b) the trustee of the plan has, in respect of the non‑member spouse’s entitlement under the agreement or order, paid to the non‑member spouse an amount with a value of at least the non‑member spouse’s entitlement in respect of the superannuation interest at the time of the payment; and (c) the interest was in the payment phase at the time of the payment. (5A) Subject to subregulation (6A), the requirements of this subregulation are satisfied if: (a) the interest is in a public sector superannuation scheme (the original scheme); and (b) at or after the operative time in relation to the agreement or order, and under the governing rules of the original scheme or under the governing rules of another public sector superannuation scheme, a separate entitlement to benefits has arisen for the non‑member spouse in respect of the non‑member spouse’s entitlement under the agreement or order, being a separate entitlement with a value of at least the value of the non‑member spouse’s entitlement in respect of the superannuation interest at the time the separate entitlement arose; and (c) the interest was in the payment phase at the time the separate entitlement arose. (6) Subregulations (3), (4), (4A) and (5) do not apply if: (a) the superannuation interest is a defined benefit interest; and (b) the governing rules of the plan provide for the reduction of the benefit payable to any other member of the plan (other than the member spouse or reversionary beneficiary of the member spouse) as a result of the creation of the new interest for the non‑member spouse, transfer or rollover of an amount to be held for the benefit of the non‑member spouse, or payment of the amount to the non‑member spouse. (6A) Subregulation (5A) does not apply if: (a) the superannuation interest is a defined benefit interest; and (b) the governing rules of the original scheme provide for the reduction of the benefit payable to any other member of the scheme (other than the member spouse or a reversionary beneficiary of the member spouse) as a result of the non‑member spouse’s separate entitlement. (7) For this regulation, the value at a particular time of the non‑member spouse’s entitlement in relation to the superannuation interest is: (a) the value at that time worked out in accordance with Part 2 of Schedule 1A, if: (i) the superannuation agreement or flag lifting agreement mentioned in subregulation (2) identified the percentage that was to apply for subparagraph 90XJ(1)(b)(i) or 90YN(1)(b)(i) (as the case may be) of the Act; and (ii) the splitting order mentioned in subregulation (2) was made under paragraph 90XT(1)(c) or 90YY(1)(c) of the Act; or (b) the value at that time worked out in accordance with Part 3 of Schedule 1A, if: (i) the superannuation agreement or flag lifting agreement mentioned in subregulation (2) identified a percentage that was to apply for subparagraph 90XJ(1)(b)(ii) or 90YN(1)(b)(ii) (as the case may be) of the Act; and (ii) the splitting order mentioned in subregulation (2) was made under paragraph 90XT(1)(b) or 90YY(1)(b) of the Act. (8) For the avoidance of doubt, nothing in this regulation requires the trustee of an eligible superannuation plan mentioned in subregulation (1) to do any of the things mentioned in subregulation (3), (4), (4A) or (5). #### 14P New deferred annuity established or amount transferred or rolled over or paid by trustee of deferred annuity in satisfaction of non‑member spouse’s entitlement under agreement or order (1) This regulation applies to a superannuation interest that is a percentage‑only interest if the interest is in a superannuation annuity that is a deferred annuity. (2) The requirements of this Division are satisfied in relation to a non‑member spouse’s entitlement under a particular superannuation agreement, flag lifting agreement or splitting order in respect of a superannuation interest of a member spouse if the requirements of subregulation (3), (4), (5) or (6) are satisfied. (3) The requirements of this subregulation are satisfied if: (a) the non‑member spouse has satisfied a relevant condition of release in relation to the interest; and (b) the trustee of the superannuation annuity has, in respect of the non‑member spouse’s entitlement under the agreement or order, paid to the non‑member spouse an amount equal to the value of the non‑member spouse’s entitlement in respect of the superannuation interest at the time of the payment; and (c) the interest is in the growth phase at the time of the payment. (4) The requirements of this subregulation are satisfied if: (a) the trustee of the superannuation annuity has, in respect of the non‑member spouse’s entitlement under the agreement or order, transferred or rolled over to a superannuation fund or an RSA an amount, to be held for the benefit of the non‑member spouse, with a value equal to the value of the non‑member spouse’s entitlement in respect of the superannuation interest at the time the amount is transferred or rolled over; and (b) the interest is in the growth phase at the amount is transferred or rolled over. (5) The requirements of this subregulation are satisfied if: (a) the trustee of the superannuation annuity has, in respect of the non‑member spouse’s entitlement under the agreement or order, established a new deferred annuity that: (i) provides for the payment of benefits to the non‑member spouse, commencing no earlier than the time when, if the new deferred annuity were taken to be an approved deposit fund for the purposes of Part 6 of the SIS Regulations, that Part would permit or require the payment of benefits from the approved deposit fund; and (ii) has a value equal to the value of the non‑member spouse’s entitlement in respect of the superannuation interest at the time the new deferred annuity is established; and (b) the interest is in the growth phase at the time the new deferred annuity is established. (6) The requirements of this subregulation are satisfied if: (a) the trustee of the superannuation annuity has, in respect of the non‑member spouse’s entitlement under the agreement or order, established a new annuity for the benefit of the non‑member spouse that: (i) is a non‑commutable income stream (within the meaning of the SIS Regulations); and (ii) has a value equal to the value of the non‑member spouse’s entitlement in respect of the superannuation interest at the time the new annuity is established; and (b) the interest is in the growth phase at the time the new annuity is established. (7) For subregulation (5): (a) the trustee of the superannuation annuity is taken to have established a new deferred annuity for the benefit of the non‑member spouse if the trustee has entered into an agreement with the non‑member spouse to provide a deferred annuity for the benefit of the non‑member spouse; and (b) the new deferred annuity is taken to have been established on the date on which the agreement between the trustee and the non‑member spouse is entered into. (8) For subregulation (6): (a) the trustee of the superannuation annuity is taken to have established a new annuity (being an annuity that is a non‑commutable income stream) for the benefit of the non‑member spouse if either of the following things have occurred: (i) the trustee has entered into an agreement with the non‑member spouse to provide, for his or her benefit, an annuity that is a non‑commutable income stream; (ii) the trustee has paid to another annuity provider an amount equal to the value of the non‑member spouse’s entitlement in respect of the superannuation interest at the time the payment is made, for the purpose of that annuity provider providing, for the benefit of the non‑member spouse, an annuity that is a non‑commutable income stream; and (b) the new annuity is taken to have been established: (i) if subparagraph (a)(i) applies—on the date on which the agreement between the trustee and the non‑member spouse is entered into; or (ii) if subparagraph (a)(ii) applies—on the date on which the amount mentioned in subparagraph (a)(ii) is paid to the annuity provider by the trustee. (9) For this regulation, the value in respect of a non‑member spouse’s entitlement in respect of a superannuation interest at the time (the termination time) when the trustee carries out an action described in subregulation (3), (4), (5) or (6) is the account balance of the superannuation annuity at the termination time, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse under regulation 59. (10) For the avoidance of doubt, nothing in this regulation requires the trustee of a superannuation annuity mentioned in subregulation (1) to do any of the things mentioned in subregulation (3), (4), (5) or (6). #### 14Q New annuity established or amount transferred or rolled over or paid by trustee of a superannuation annuity (other than under regulation 14P) in satisfaction of non‑member spouse’s entitlement under agreement or order (1) This regulation applies to a superannuation interest that is a percentage‑only interest if the interest is in a superannuation annuity that is one of the following: (a) an allocated annuity; (b) a market linked annuity; (c) a fixed term annuity; (d) a lifetime annuity, including a lifetime annuity that is payable for the lives of more than one person. (2) The requirements of this Division are satisfied in relation to a non‑member spouse’s entitlement under a particular superannuation agreement or splitting order in respect of a superannuation interest of a member spouse if the requirements of subregulation (3), (4) or (5) are satisfied. (3) The requirements of this subregulation are satisfied if: (a) the trustee of the superannuation annuity has, in respect of the non‑member spouse’s entitlement under the agreement or order, paid to the non‑member spouse an amount equal to the value of the non‑member spouse’s entitlement in respect of the superannuation interest at the time of the payment; and (b) the interest: (i) was in the payment phase at the operative time in relation to the agreement or order; and (ii) is in the payment phase at the time of the payment. (4) The requirements of this subregulation are satisfied if: (a) the trustee of the superannuation annuity has, in respect of the non‑member spouse’s entitlement under the agreement or order, transferred or rolled over to a superannuation fund or an RSA an amount, to be held for the benefit of the non‑member spouse, with a value equal to the value of the non‑member spouse’s entitlement in respect of the superannuation interest at the time the amount is transferred or rolled over; and (b) the interest is in the payment phase at the time the amount is transferred or rolled over. (5) The requirements of this subregulation are satisfied if: (a) the trustee of the superannuation annuity has, in respect of the non‑member spouse’s entitlement under the agreement or order, established any of the following new annuities for the benefit of the non‑member spouse: (i) an allocated annuity; (ii) a market linked annuity; (iii) a fixed term annuity; (iv) a lifetime annuity; and (b) the new annuity has a value equal to the value of the non‑member spouse’s entitlement in respect of the superannuation interest at the time the new annuity is established; and (c) the interest is in the payment phase at the time the new annuity is established. (6) For subregulation (5): (a) the trustee of the superannuation annuity is taken to have established a new annuity for the benefit of the non‑member spouse if either of the following things have occurred: (i) the trustee has entered into an agreement with the non‑member spouse to provide, for his or her benefit, an annuity that is a type of annuity mentioned in subparagraph (5)(a)(i), (ii), (iii) or (iv); (ii) the trustee has paid to another annuity provider an amount equal to the value of the non‑member spouse’s entitlement in respect of the superannuation interest at the time the payment is made, for the purpose of that annuity provider providing, for the benefit of the non‑member spouse, an annuity that is a type of annuity mentioned in subparagraph (5)(a)(i), (ii), (iii) or (iv); and (b) the new annuity is taken to have been established: (i) if subparagraph (a)(i) applies—on the date on which the agreement between the trustee and the non‑member spouse is entered into; or (ii) if subparagraph (a)(ii) applies—on the date on which the amount mentioned in subparagraph (a)(ii) is paid to the annuity provider by the trustee. (7) For this regulation, the value in respect of non‑member spouse’s entitlement in respect of a superannuation interest at the time (the termination time) when the trustee carries out an action described in any of subregulations (3) to (5) is: (a) if the superannuation interest is in a superannuation annuity that is an allocated annuity—the account balance of the allocated annuity at the termination time, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse under regulation 59; or (b) if the superannuation interest is in a superannuation annuity that is a market linked annuity—the account balance of the market linked annuity at the termination time, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse under regulation 59; or (c) if the superannuation interest is in a superannuation annuity that is a lifetime annuity—the value of the interest at the termination time calculated in accordance with Schedule 4A, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse under regulation 59; or (d) if the superannuation interest is in a superannuation annuity that is a fixed term annuity—the value of the interest at the termination time calculated in accordance with Schedule 5A, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse under regulation 59. (8) For the avoidance of doubt, nothing in this regulation requires the trustee of a superannuation annuity mentioned in subregulation (1) to do any of the things mentioned in subregulation (3), (4) or (5). ## Part 3—Payment splitting or flagging by agreement ### Division 3.1—Superannuation interest that is not a percentage‑only interest #### 15 Application of Division 3.1 (Act s 90XJ, s 90YN) This Division applies to a payment split under a superannuation agreement or flag lifting agreement in relation to a superannuation interest of a member spouse if: (a) the interest is not a percentage‑only interest; and (b) the agreement specifies: (i) an amount as a base amount in relation to the interest for the purposes of Part VIIIB or VIIIC of the Act; or (ii) a method by which a base amount can be calculated at the time when the agreement is served on the trustee under section 90XI or 90YM of the Act. #### 16 Entitlement of non‑member spouse—superannuation interest not in existence or in growth phase (1) This regulation applies if the superannuation interest: (a) is not a small superannuation accounts interest; and (b) is not in existence at the date of the agreement, or is in the growth phase at the date of the agreement and is not in the payment phase at the date when the agreement is served on the trustee under section 90XI or 90YM of the Act. (2) The amount (if any) that the non‑member spouse is entitled to be paid in respect of a splittable payment that becomes payable in respect of the superannuation interest is the amount calculated in accordance with Division 6.2. #### 17 Entitlement of non‑member spouse—superannuation interest in payment phase (1) This regulation applies if the superannuation interest: (a) is not a small superannuation accounts interest; and (b) is in the payment phase at the date of the agreement or the date when the agreement is served on the trustee under section 90XI or 90YM of the Act. (2) The amount that the non‑member spouse is entitled to be paid in respect of a splittable payment that becomes payable in respect of the superannuation interest is the amount calculated in accordance with Division 6.3. ### Division 3.2—Superannuation interest that is a percentage‑only interest #### 18 Application of Division 3.2 (Act s 90XJ, s 90YN) This Division applies to a payment split under a superannuation agreement or flag lifting agreement in relation to a superannuation interest of a member spouse if: (a) the interest is a percentage‑only interest; and (b) the agreement specifies a percentage that is to apply for the purposes of subparagraph 90XJ(1)(b)(i) or 90YN(1)(b)(i) (as the case may be) of the Act. #### 19 Entitlement of non‑member spouse—splittable payment payable in respect of superannuation interest (other than an interest in a superannuation annuity) The amount that the non‑member spouse is entitled to be paid in respect of a splittable payment that becomes payable in respect of a superannuation interest that the member spouse has in an eligible superannuation plan (other than a superannuation annuity) is:  where: > Accrued benefit multiple at separation is the member spouse’s accrued benefit multiple, as defined in the governing rules of the eligible superannuation plan in which the superannuation interest is held, at the date when the member spouse and non‑member spouse separated or, if there have been 2 or more separations, at the date of the most recent separation. > Accrued benefit multiple at payment is the member spouse’s accrued benefit multiple, as defined in the governing rules of the eligible superannuation plan in which the superannuation interest is held, at the date when the splittable payment becomes payable in respect of the superannuation interest. > X is the percentage specified in the agreement. > SP is the amount of the splittable payment. #### 19A Entitlement of non‑member spouse—splittable payment payable in respect of superannuation interest in a superannuation annuity The amount that the non‑member spouse is entitled to be paid in respect of a splittable payment that becomes payable in respect of a superannuation interest that the member spouse has in a superannuation annuity is the amount of the splittable payment multiplied by the percentage specified in the relevant superannuation agreement or flag‑splitting agreement. ### Division 3.3—Miscellaneous #### 20 Superannuation interests in excess of low rate cap amount—total withdrawal value (Act s 90XQ, 90YV) For subsections 90XQ(3) and 90YV(3) of the Act, the total withdrawal value for all the superannuation interests of a member spouse at a particular time is the amount determined by adding together the withdrawal benefits for each superannuation interest the member spouse has in any eligible superannuation plan at that time. ## Part 4—Payment splitting or flagging by court order ### Division 4.1—Superannuation interest that is not a percentage‑only interest #### 21 Application of Division 4.1 (Act s 90XT, s 90YY) This Division applies to a payment split under a splitting order in relation to a superannuation interest of a member spouse that is not a percentage‑only interest. #### 22 Determination of amount in relation to certain superannuation interests (1) Subject to subregulation (2), the court must determine an amount in relation to the superannuation interest at the relevant date: (a) if the interest is in the growth phase at the relevant date—in accordance with Division 5.1; and (b) if the interest is in the payment phase at the relevant date—in accordance with Division 5.2. (2) Subregulation (1) does not apply if the superannuation interest is: (a) a small superannuation accounts interest; or (b) an interest in a self managed superannuation fund; or (c) an interest in a regulated superannuation fund in relation to which the trustee of the fund has, under section 1017B of the Corporations Act 2001 (as modified, if necessary, as set out in Part 10 of Schedule 10A to the Corporations Regulations 2001), given notice to each member of the fund that the fund is to be reconstructed or terminated. > Note 1: See regulation 24 in relation to the determination of an amount in relation to a small superannuation accounts interest. > Note 2: The court must determine an amount in relation to a superannuation interest of the kind mentioned in paragraph (2)(b) or (c) by such method as it considers appropriate—see paragraphs 90XT(2)(b) and 90YY(2)(b) of the Act. #### 23 Entitlement of non‑member spouse—interests other than small superannuation accounts interests (1) This regulation applies if: (a) the splitting order is made under paragraph 90XT(1)(a) or 90YY(1)(a) of the Act; and (b) the superannuation interest in respect of which the order is made is not a small superannuation accounts interest. (2) The amount that the non‑member spouse is entitled to be paid in respect of a splittable payment that becomes payable in respect of the superannuation interest is: (a) if the interest is in the growth phase at the date of the splitting order—the amount calculated in accordance with Division 6.2; and (b) if the interest is in the payment phase at the date of the splitting order—the amount calculated in accordance with Division 6.3. #### 24 Determination of value of small superannuation accounts interests (1) This regulation applies if the superannuation interest is a small superannuation accounts interest. (2) The amount in relation to the interest that the court must determine is the account balance at the relevant date that the Commissioner of Taxation would be required to transfer to a specified RSA, or to the trustee of a complying fund, for the benefit of the member spouse, if the Commissioner had received a transfer request from the member spouse under section 61 of the Small Superannuation Accounts Act 1995. (3) In this regulation: > complying fund means a fund that passes the compliance test in subsection 61(2) of the Small Superannuation Accounts Act 1995. ### Division 4.2—Superannuation interest that is a percentage‑only interest #### 25 Application of Division 4.2 (Act s 90XT, s 90YY) This Division applies to a payment split under a splitting order in relation to a superannuation interest of a member spouse that is a percentage‑only interest. #### 26 Entitlement of non‑member spouse—splittable payment payable in respect of superannuation interest (other than an interest in a superannuation annuity) The amount that the non‑member spouse is entitled to be paid in respect of a splittable payment that becomes payable in respect of a superannuation interest that the member spouse has in an eligible superannuation plan (other than a superannuation annuity) is:  where: > Accrued benefit multiple at separation is the member spouse’s accrued benefit multiple, as defined in the governing rules of the eligible superannuation plan in which the superannuation interest is held, at the date when the member spouse and non‑member spouse separated or, if there have been 2 or more separations, at the date of the most recent separation. > Accrued benefit multiple at payment is the member spouse’s accrued benefit multiple, as defined in the governing rules of the eligible superannuation plan in which the superannuation interest is held, at the date when the splittable payment becomes payable in respect of the superannuation interest. > X is the percentage specified in the splitting order. > SP is the amount of the splittable payment. #### 26A Entitlement of non‑member spouse—splittable payment payable in respect of superannuation interest in a superannuation annuity The amount that the non‑member spouse is entitled to be paid in respect of a splittable payment that becomes payable in respect of a superannuation interest that the member spouse has as a member of a superannuation annuity is the amount of the splittable payment multiplied by the percentage specified in the splitting order. ## Part 5—Determination of amount in relation to certain superannuation interests ### Division 5.1—Superannuation interest in growth phase at relevant date #### 27 Application of Division 5.1 (Act s 90XT, s 90YY) For paragraphs 90XT(2)(a) and 90YY(2)(a) of the Act and paragraph 22(1)(a) of these Regulations, this Division sets out the method for determining an amount in relation to a superannuation interest of a member spouse at the relevant date if the interest: (a) is not a percentage‑only interest; and (b) is in the growth phase at the relevant date. > Note: This Division does not apply to a superannuation interest of a kind mentioned in subregulation 22(2). #### 28 Method for determining amount in relation to a superannuation interest—general (1) The method for determining an amount in relation to the superannuation interest at the relevant date is as follows: ```html <table cellspacing="0" cellpadding="0" style="width:100%; border:0.75pt solid #000000; border-collapse:collapse"><tbody><tr><td style="width:16.28%; padding-right:4pt; padding-left:3.62pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">Step 1</span></p></td><td style="width:83.72%; padding-right:3.62pt; padding-left:4pt; vertical-align:top"><p class="Tabletext"><span>Determine the gross value of the superannuation interest at the relevant date.</span></p></td></tr><tr><td style="width:16.28%; padding-right:4pt; padding-left:3.62pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">Step 2</span></p></td><td style="width:83.72%; padding-right:3.62pt; padding-left:4pt; vertical-align:top"><p class="Tabletext"><span>Deduct from the amount determined under Step 1 any amount payable under a payment split that applies to a splittable payment in respect of the superannuation interest and has an operative time that is before the relevant date.</span></p></td></tr><tr><td style="width:16.28%; padding-right:4pt; padding-left:3.62pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">Step 3</span></p></td><td style="width:83.72%; padding-right:3.62pt; padding-left:4pt; vertical-align:top"><p class="Tabletext"><span>Deduct from the amount determined under Step 2:</span></p><p class="Tablea"><span>(a) if the superannuation interest is a defined benefit interest in a superannuation fund that is not a constitutionally protected fund—the amount (if any) of any surcharge debt of the member spouse as stated in the most recent member information statement provided by the fund to the member spouse before the relevant date; or</span></p><p class="Tablea"><span>(b) if the superannuation interest is in a superannuation fund that is a constitutionally protected fund—the amount (if any) stated in the surcharge debt account maintained for the member spouse by the Commissioner of Taxation at the relevant date.</span></p></td></tr><tr><td colspan="2" style="padding-right:3.62pt; padding-left:3.62pt; vertical-align:top"><p class="Tabletext"><span>The resulting amount is the </span><span style="font-weight:bold">amount in relation to the superannuation interest</span><span> at the relevant date.</span></p></td></tr></tbody></table> ``` (2) For Step 1 of the table in subregulation (1), the gross value of the superannuation interest at the relevant date is the gross value of the interest as determined in accordance with the regulation in this Division that applies to the interest. #### 29 Method for determining gross value—defined benefit interest (1) If the whole of the superannuation interest is a defined benefit interest, the gross value at the relevant date of the interest is to be determined in accordance with this regulation. (2) If: (a) under regulation 38, the Minister has approved a method or factors to be used to determine the gross value of the interest; and (b) evidence is before the court in the relevant proceeding of the contents of a statement issued by the trustee of the plan in which the interest is held, being a statement that states the gross value of the interest determined in accordance with the approved method or factors; the gross value of the interest at the relevant date is the value of the interest stated in the statement. (3) If: (a) the Minister has not approved, under regulation 38, a method or factors to be used to determine the gross value of the interest; and (b) evidence is before the court in the relevant proceeding of the contents of a statement issued by the trustee of the plan in which the interest is held, being a statement that states the value of the interest determined in accordance with the method set out in Schedule 2; the gross value of the interest at the relevant date is the value of the interest stated in the statement. (4) If no evidence is before the court in the relevant proceeding of the contents of a statement mentioned in paragraph (2)(b) or (3)(b), the gross value at the relevant date of the interest is to be determined using: (a) if, under regulation 38, the Minister has approved a method or factors to be used to determine the gross value of the interest—the approved method or factors; or (b) in any other case—the method set out in Schedule 2. #### 30 Approval of retirement age (1) For the purpose of determining the gross value of a defined benefit interest in accordance with the method set out in Schedule 2 or a method approved under regulation 38, the Minister may approve, in writing, as the retirement age for all members of the eligible superannuation plan in which the interest is held, or an identifiable class of members of the plan, an age other than: (a) the retirement age specified in the governing rules of the plan; or (b) the age of 65 years. (2) An approval by the Minister under subregulation (1) is a legislative instrument. #### 31 Method for determining gross value—accumulation interest (other than a partially vested accumulation interest) (1) If the whole of the superannuation interest is an accumulation interest (other than a partially vested accumulation interest), the gross value at the relevant date of the interest is to be determined in accordance with this regulation. (2) Subject to subregulation (2B), if: (a) a member information statement stating the value of the interest at the relevant date has been provided to the member spouse; and (b) evidence of the contents of the statement is before the court in the relevant proceeding; the gross value at the relevant date of the interest is the value of the interest stated in the statement. (2A) If: (a) a statement has been issued by the trustee of the plan in which the interest is held, being a statement that states the value of the benefits (before any taxes or other charges have been deducted) that would have been payable in respect of the interest at the relevant date if the member spouse had voluntarily ceased to be a member of the plan on that date; and (b) evidence of the contents of the statement is before the court in the relevant proceeding; the gross value at the relevant date of the interest is the value of the interest stated in the statement. (2B) If: (a) evidence of the contents of a member information statement mentioned in subregulation (2) and a statement of the kind mentioned in subregulation (2A) is before the court in the relevant proceeding; and (b) the value of the interest stated in each statement is not the same; the gross value at the relevant date of the interest is the value of the interest stated in the statement mentioned in subregulation (2A). (3) If subregulation (2) or (2A) does not apply, the gross value of the interest at the relevant date is:  where: > V1 is the sum of: (a) the value of the interest at the first valuation date; and (b) the value of any benefits rolled over, or transferred, by the member spouse to the plan in which the interest is held (other than regular contributions made by or for the member spouse to the plan) in the period between the first valuation date and the relevant date (excluding both those dates), less the value of any partial payment of benefits to the member made in that period. > V2 is the sum of: (a) the value of the interest at the second valuation date; and (b) the value of any partial payment of benefits made to the member in the period beginning on the day after the relevant date and ending at the end of the second valuation date, less the value of any benefits rolled over, or transferred, by the member spouse to the plan in which the interest is held (other than regular contributions made by or for the member spouse to the plan), and any interest earned on those benefits, in that period. > X is the number of days in the period between the first valuation date and the relevant date (excluding both those dates). > D is the number of days in the period beginning on the day after the first valuation date and ending at the end of the second valuation date. (4) For the purpose of determining the gross value of a member spouse’s interest at the relevant date under subregulation (3): (a) if, in relation to the interest, evidence of the contents of one member information statement only is before the court in the relevant proceeding, and the relevant date is after the valuation date stated in that statement: (i) the first valuation date is the valuation date stated in that statement; and (ii) the value of the interest at the first valuation date is the value of the interest stated in that statement; and (iii) the second valuation date is a date after the relevant date that is within 28 days before the date when the valuation of the interest is being carried out; and (iv) the value of the interest at the second valuation date is the value of the interest at that date; and (b) if, in relation to the interest, evidence of the contents of 2 member information statements is before the court in the relevant proceeding, and the relevant date is between the valuation date stated in one of those statements (the first statement) and the valuation date stated in the other statement (the second statement): (i) the first valuation date is the valuation date stated in the first statement; and (ii) the value of the interest at the first valuation date is the value of the interest stated in the first statement; and (iii) the second valuation date is the valuation date stated in the second statement; and (iv) the value of the interest at the second valuation date is the value of the interest stated in the second statement; and (c) if, in relation to the interest, evidence of the contents of one member information statement only is before the court in the relevant proceeding, and the relevant date is before the valuation date stated in that statement: (i) the first valuation date is the date when the interest was acquired by the member spouse; and (ii) the value of the interest at the first valuation date is the value of the interest at that date; and (iii) the second valuation date is the valuation date stated in the statement; and (iv) the value of the interest at the second valuation date is the value of the interest stated in the statement; and (d) in any other case: (i) the first valuation date is the date when the interest was acquired by the member spouse; and (ii) the value of the interest at the first valuation date is the value of the interest at that date; and (iii) the second valuation date is a date after the relevant date that is within 28 days before the date when the valuation of the interest is being carried out; and (iv) the value of the interest at the second valuation date is the value of the interest at that date. (4A) For subparagraphs (4)(a)(iv) and (d)(iv), the value of the interest at the second valuation date includes: (a) any amount payable under an earlier payment split that applies in respect of the interest; and (b) the amount of any surcharge debt of the member spouse in respect of the interest. (4B) For this regulation, a reference to the value of the interest stated in a statement: (a) is a reference to the value stated in the statement, however that value is described (for example, the member’s account balance, share in the plan, withdrawal benefit); and (b) if 2 or more values are stated in the statement, is taken to be a reference to the value of the benefits (before any taxes or other charges have been deducted) that would have been payable in respect of the interest if the member spouse had voluntarily ceased to be a member of the plan at the date at which the value is stated. (5) In this regulation: > valuation date, in relation to a superannuation interest to which a member information statement applies, means the date as at which the value of the interest is stated in the statement. #### 32 Method for determining gross value—partially vested accumulation interest (1) If the whole of the superannuation interest is a partially vested accumulation interest, the gross value at the relevant date of the interest is to be determined in accordance with this regulation. (2) If: (a) under regulation 38, the Minister has approved a method or factors to be used to determine the gross value of the interest; and (b) evidence is before the court in the relevant proceeding of the contents of a statement issued by the trustee of the plan in which the interest is held, being a statement that states the gross value of the interest determined in accordance with the approved method or factors; the gross value of the interest at the relevant date is the value of the interest stated in the statement. (3) If: (a) the Minister has not approved, under regulation 38, a method or factors to be used to determine the gross value of the interest; and (b) evidence is before the court in the relevant proceeding of the contents of a statement issued by the trustee of the plan in which the interest is held, being a statement that states the value of the interest determined in accordance with the method set out in Schedule 3; the gross value of the interest at the relevant date is the value of the interest stated in the statement. (4) If no evidence is before the court in the relevant proceeding of the contents of a statement mentioned in paragraph (2)(b) or (3)(b), the gross value at the relevant date of the interest is to be determined using: (a) if, under regulation 38, the Minister has approved a method or factors to be used to determine the gross value of the interest—the approved method or factors; or (b) in any other case—the method set out in Schedule 3. #### 33 Method for determining gross value—combination of defined benefit interest and accumulation interest (1) Subject to subregulation (2), if the superannuation interest is made up of a component that is a defined benefit interest and a component that is an accumulation interest (other than a partially vested accumulation interest), the gross value at the relevant date of the interest is to be determined by adding: (a) the gross value at the relevant date of the defined benefit interest, determined in accordance with the method set out in regulation 29; and (b) the gross value at the relevant date of the accumulation interest, determined in accordance with the method set out in regulation 31. (2) This regulation does not apply to a superannuation interest in relation to which a method or factor has been approved in an instrument made under regulation 38 after the commencement of this subregulation. #### 34 Method for determining gross value—combination of defined benefit interest and partially vested accumulation interest (1) Subject to subregulation (2), if the superannuation interest is made up of a component that is a defined benefit interest and a component that is a partially vested accumulation interest, the gross value at the relevant date of the interest is to be determined by adding: (a) the gross value at the relevant date of the defined benefit interest, determined in accordance with the method set out in regulation 29; and (b) the gross value at the relevant date of the partially vested accumulation interest, determined in accordance with the method set out in regulation 32. (2) This regulation does not apply to a superannuation interest in relation to which a method or factor has been approved in an instrument made under regulation 38. #### 35 Method for determining gross value—interest that is the greater of a defined benefit interest and an accumulation interest If the superannuation interest is the greater of a defined benefit interest and an accumulation interest (other than a partially vested accumulation interest), the gross value at the relevant date of the interest is to be determined to be the greater of: (a) the gross value at the relevant date of the defined benefit interest, determined in accordance with the method set out in regulation 29; and (b) the gross value at the relevant date of the accumulation interest, determined in accordance with the method set out in regulation 31. #### 36 Method for determining gross value—interest that is the lesser of a defined benefit interest and an accumulation interest If the superannuation interest is the lesser of a defined benefit interest and an accumulation interest (other than a partially vested accumulation interest), the gross value at the relevant date of the interest is to be determined to be the lesser of: (a) the gross value at the relevant date of the defined benefit interest, determined in accordance with the method set out in regulation 29; and (b) the gross value at the relevant date of the accumulation interest, determined in accordance with the method set out in regulation 31. #### 37 Method for determining gross value—defined benefit less other amount (1) If the superannuation interest is a defined benefit interest the benefit in respect of which is, under the governing rules of the eligible superannuation plan in which the interest is held, the amount of a defined benefit less any other amount (other than an amount of superannuation contributions surcharge that the trustee is liable to pay in respect of the interest), the gross value at the relevant date of the interest is to be determined as the difference between: (a) the gross value at the relevant date of the defined benefit interest, determined in accordance with the method set out in regulation 29; and (b) the value at the relevant date of the other amount. (2) For the purpose of determining the value at the relevant date of the other amount under paragraph (1)(b), if: (a) the other amount is in respect of a superannuation interest; and (b) this Division provides a method for determining an amount in relation to that kind of interest; the value at the relevant date of the other amount is to be determined in accordance with that method. #### 38 Approval of methods and factors for determining gross value of particular superannuation interests (1) The Minister may approve, in writing, for the purposes of this regulation, methods or factors that are to be used to determine the gross value of any of the following: (a) a superannuation interest the whole of which is a defined benefit interest; (b) a superannuation interest the whole of which is a partially vested accumulation interest; (c) a superannuation interest that is made up of a component that is a defined benefit interest and a component that is an accumulation interest (other than a partially vested accumulation interest); (d) a superannuation interest that is made up of a component that is a defined benefit interest and a component that is a partially vested accumulation interest; (e) a defined benefit interest the gross value of which is to be determined under regulation 35, 36 or 37. (2) A method or factors approved by the Minister under subregulation (1) may relate to any of the following: (a) the gross value of a superannuation interest, or a component of a superannuation interest, in a particular eligible superannuation plan; (b) the gross value of a superannuation interest, or a component of a superannuation interest, in a particular category of superannuation interests in a particular eligible superannuation plan; (c) the gross value, in particular circumstances, of a superannuation interest or a component of a superannuation interest, or a superannuation interest or a component of a superannuation interest in a particular category of superannuation interests, in a particular eligible superannuation plan; (d) the gross value, in particular circumstances, of a particular component of a superannuation interest in a particular eligible superannuation plan. (3) An approval by the Minister under subregulation (1) is a legislative instrument. (4) An approval made under this regulation before the commencement of this subregulation has effect as if it had been made under this regulation as in force at the commencement of this subregulation. > Note: If, under this regulation, the Minister approves a method or factors to be used to determine the gross value of a superannuation interest, the approved method or factors are to be used to determine the gross value of the interest instead of the method set out in these Regulations. ### Division 5.2—Superannuation interest in payment phase at relevant date #### 39 Application of Division 5.2 (Act s 90XT, s 90YY) For paragraphs 90XT(2)(a) and 90YY(2)(a) of the Act and paragraph 22(1)(b) of these Regulations, this Division sets out the method for determining an amount in relation to a superannuation interest of a member spouse at the relevant date if the interest: (a) is not a percentage‑only interest; and (b) is in the payment phase at the relevant date. > Note: This Division does not apply to a superannuation interest of a kind mentioned in subregulation 22(2). #### 40 Method for determining amount in relation to a superannuation interest—general (1) The method for determining an amount in relation to the superannuation interest at the relevant date is as follows: ```html <table cellspacing="0" cellpadding="0" style="width:100%; border:0.75pt solid #000000; border-collapse:collapse"><tbody><tr><td style="width:16.28%; padding-right:4pt; padding-left:3.62pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">Step 1</span></p></td><td style="width:83.72%; padding-right:3.62pt; padding-left:4pt; vertical-align:top"><p class="Tabletext"><span>Determine the gross value of the superannuation interest at the relevant date.</span></p></td></tr><tr><td style="width:16.28%; padding-right:4pt; padding-left:3.62pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">Step 2</span></p></td><td style="width:83.72%; padding-right:3.62pt; padding-left:4pt; vertical-align:top"><p class="Tabletext"><span>Deduct from the amount determined under Step 1 any amount payable under a payment split that applies to a splittable payment in respect of the superannuation interest and has an operative time that is before the relevant date.</span></p></td></tr><tr><td colspan="2" style="padding-right:3.62pt; padding-left:3.62pt; vertical-align:top"><p class="Tabletext"><span>The resulting amount is the </span><span style="font-weight:bold">amount in relation to the superannuation interest</span><span> at the relevant date.</span></p></td></tr></tbody></table> ``` (2) For Step 1 of the table in subregulation (1), the gross value of the superannuation interest at the relevant date is the gross value of the interest as determined in accordance with the regulation in this Division that applies to the interest. #### 41 Method for determining gross value—benefits payable only as one or more lump sums If the whole, or the remaining part, of the benefits in respect of the superannuation interest is payable only as one or more lump sums, the gross value at the relevant date of the interest is to be the withdrawal benefit in relation to the member spouse at that date. #### 42 Method for determining gross value—benefits paid as pension (1) This regulation applies to the superannuation interest if the benefits in respect of the interest are being paid as a pension at the relevant date. (2) If the pension is payable for the life of the member spouse, the gross value of the superannuation interest at the relevant date is to be determined using: (a) if, under regulation 43A, the Minister has approved a method or factors to be used to determine the gross value of the interest—the approved method or factors; or (b) in any other case—the method set out in Schedule 4. (3) If the pension is payable for a fixed term only and the pension is not a market linked pension, the gross value of the superannuation interest at the relevant date is to be determined using the method set out in Schedule 5. (4) If the pension is an allocated pension, the gross value of the superannuation interest at the relevant date is to be the withdrawal benefit in relation to the member spouse at that date. (5) If the pension is a market linked pension, the gross value of the superannuation interest at the relevant date is the market linked pension account balance at that date. #### 43 Method for determining gross value—benefits paid as pension and lump sum also payable (1) This regulation applies to the superannuation interest if: (a) part of the benefits in respect of the interest is being paid as a pension at the relevant date; and (b) the remaining part of the benefits is payable as a lump sum (whether at the relevant date or at any time after that date) that is not a commutation of the pension. (2) If the lump sum is payable at the relevant date, the gross value of the superannuation interest at the relevant date is to be determined by adding: (a) the gross value of the pension, determined using the relevant method set out in regulation 42; and (b) the amount of the lump sum. (3) If the lump sum is payable at any time after the relevant date, the gross value of the superannuation interest at the relevant date is to be determined using the method set out in Schedule 6. #### 43A Approval of methods and factors for determining gross value of superannuation interest being paid as a life pension (1) The Minister may approve, in writing, for the purposes of this regulation, methods or factors that are to be used to determine the gross value of a superannuation interest the benefits in respect of which are being paid as a pension that is payable for the life of the member spouse. (2) An approval by the Minister under subregulation (1) is a legislative instrument. > Note: If the Minister approves a method or factors to be used to determine the gross value of a superannuation interest, the approved method or factors are to be used to determine the gross value of the interest instead of the method set out in Schedule 4 to these Regulations—see subregulation 42(2). ## Part 6—Entitlement of non‑member spouse in respect of certain superannuation interests ### Division 6.1—Interpretation #### 44 Definition for Part 6 In this Part: > lump sum means any amount (other than an amount of a pension payment) that is paid to a member in respect of a superannuation interest. > Note: Examples: > Note: 1 A transfer of money. > Note: 2 A rollover of benefits under the SIS Act. #### 45 Meaning of base amount allocated to the non‑member spouse (1) For this Part, the base amount allocated to the non‑member spouse, in relation to a superannuation interest, is: (a) in the case of an interest that is identified in a superannuation agreement or flag lifting agreement: (i) the base amount specified in the agreement in relation to the interest for the purposes of Part VIIIB or VIIIC of the Act, rounded, if necessary, in accordance with subregulation (2); or (ii) the base amount calculated in accordance with a method specified in the agreement, rounded, if necessary, in accordance with subregulation (2); and (b) in the case of an interest in relation to which a splitting order applies—the base amount allocated to the non‑member spouse by the court under subsection 90XT(4) or 90YY(5) of the Act, rounded, if necessary, in accordance with subregulation (2). (2) For subregulation (1): (a) a base amount that includes a part of a dollar that is less than 50 cents is to be rounded down to the nearest dollar; and (b) a base amount that includes a part of a dollar that is 50 cents or more is to be rounded up to the nearest dollar. ### Division 6.1A—Adjustment of base amount #### 45A Adjustment of base amount (1) For the purpose of calculating: (a) the amount (if any) that the non‑member spouse is entitled to be paid in respect of a splittable payment that becomes payable in respect of a superannuation interest in the growth phase that is subject to a payment split; or (b) the value of the non‑member spouse’s entitlement under a superannuation agreement, flag lifting agreement or splitting order in respect of a superannuation interest in the growth phase; the base amount allocated to the non‑member spouse in relation to the interest must be adjusted by the trustee of the eligible superannuation plan in which the interest is held for each adjustment period applicable to the interest under this Division. (2) After each applicable adjustment period, the trustee must, if necessary, adjust the base amount in accordance with the rate of interest that applied to the superannuation interest in that adjustment period under regulation 45D. > Note: Depending on the rate of interest that applied to the superannuation interest in an adjustment period, the base amount may be adjusted by a positive amount or a negative amount or, if the rate was nil, not adjusted. (3) For this regulation, a superannuation interest is in the growth phase if: (a) in the case of an interest that is identified in a superannuation agreement or flag lifting agreement—the interest was in the growth phase at the date when the agreement was served on the trustee under section 90XI or 90YM of the Act; and (b) in the case of an interest in relation to which a splitting order applies—the interest was in the growth phase at the date of the order. #### 45B Applicable adjustment periods—superannuation interests other than those to which regulation 45C applies (1) If a superannuation interest is not an interest to which regulation 45C applies, the applicable adjustment periods for the interest are: (a) if a splittable payment becomes payable, or a terminating action occurs, in respect of the interest before the end of the first year—the period beginning at the operative time and ending at the end of the day before the payment becomes payable or the terminating action occurs; and (b) in any other case, the following periods: (i) the period beginning at the operative time and ending at the end of the first year; (ii) after the first year, each whole year (if any) ending before a splittable payment becomes payable, or a terminating action occurs, in respect of the interest; (iii) in the year in which a splittable payment becomes payable, or a terminating action occurs, in respect of the interest—the period beginning at the beginning of that year and ending at the end of the day before the payment becomes payable or the terminating action occurs. (2) In this regulation: > first year means the year in which the operative time in relation to the relevant payment split occurs. > relevant condition of release has the same meaning as in Division 2.2. > terminating action, for a superannuation interest, means any of the following actions, in respect of the non‑member spouse’s entitlement under a superannuation agreement, flag lifting agreement or splitting order, by the trustee of the plan in which the interest is held: (a) the creation, under the governing rules of the plan, of a new interest in the plan for the non‑member spouse; (b) the transfer or rollover, under the governing rules of the plan, to another superannuation fund or an RSA of an amount to be held for the benefit of the non‑member spouse; (c) if the non‑member spouse has satisfied a relevant condition of release—the payment of an amount to the non‑member spouse. > year, for a superannuation interest, means: (a) if the interest is in a regulated superannuation fund that has a year of income within the meaning of subsection 10(1) of the SIS Act—a year of income; and (b) in any other case—a financial year. #### 45C Applicable adjustment periods—whole of superannuation interest is accumulation interest (1) If the whole of a superannuation interest is an accumulation interest in a regulated superannuation fund (other than a self managed superannuation fund), an approved deposit fund or an RSA, the applicable adjustment periods for the interest are: (a) if a splittable payment becomes payable, or a terminating action occurs, in respect of the interest before the end of the first allotment period—the period beginning at the operative time and ending at the end of the period for which the plan would allot net earnings to the member spouse if he or she voluntarily ceased to be a member of the plan on the day when the splittable payment becomes payable or the terminating action occurs; and (b) in any other case, the following periods: (i) the period beginning at the operative time and ending at the end of the first allotment period; (ii) after the first allotment period, each whole allotment period (if any) ending before a splittable payment becomes payable, or a terminating action occurs, in respect of the interest; (iii) in the allotment period in which a splittable payment becomes payable, or a terminating action occurs, in respect of the interest—the period beginning at the beginning of that allotment period and ending at the end of the period for which the plan would allot net earnings to the member spouse if he or she voluntarily ceased to be a member of the plan on the day when the splittable payment becomes payable or the terminating action occurs. (2) In this regulation: > allotment period, for a superannuation interest, means the period used by the plan in which the interest is held to allot net earnings of the plan to the member who has the interest. > first allotment period, for a superannuation interest, means the allotment period in which the operative time in relation to the relevant payment split occurs. > relevant condition of release has the same meaning as in Division 2.2. > terminating action, for a superannuation interest, means any of the following actions, in respect of the non‑member spouse’s entitlement under a superannuation agreement, flag lifting agreement or splitting order, by the trustee of the plan in which the interest is held: (a) the creation, under the payment split provisions of the SIS Regulations, of a new interest in the plan for the non‑member spouse; (b) the opening of a new RSA for the non‑member spouse under the payment split provisions of the RSA Regulations; (c) the transfer or rollover, under the payment split provisions of the SIS Regulations or the RSA Regulations, to another superannuation fund or an RSA of an amount to be held for the benefit of the non‑member spouse; (d) if the non‑member spouse has satisfied a relevant condition of release—the payment, under the payment split provisions of the SIS Regulations or the RSA Regulations, of an amount to the non‑member spouse. #### 45D Interest rates for adjustment of base amount (1) The rate of interest that applies to a superannuation interest in an adjustment period is the interest rate that applies to the interest for the adjustment period under this regulation. (2) If the whole of the superannuation interest is an accumulation interest (other than an interest in a self managed superannuation fund), the interest rate for the adjustment period is: (a) for an interest in a regulated superannuation fund, an approved deposit fund or an RSA: (i) the rate of any allotment (being the allotment of a positive amount, a nil amount or a negative amount) to the member spouse of net earnings of the eligible superannuation plan for the adjustment period; or (ii) if there has been no such allotment to the member spouse for the adjustment period, the rate at which net earnings of the plan would be allotted to the member spouse if he or she voluntarily ceased to be a member of the plan on the day when the relevant splittable payment becomes payable or the terminating action, within the meaning given by subregulation 45C(2), occurs; and (b) if the interest is in an exempt public sector superannuation scheme or a superannuation fund that is not a regulated superannuation fund: (i) the rate of any allocation (being the allocation of a positive amount, a nil amount or a negative amount) to the member spouse of investment earnings (however described) of the eligible superannuation plan for the adjustment period; or (ii) if there has been no such allocation to the member spouse for the adjustment period, the rate at which those investment earnings would be allocated to the member spouse if he or she voluntarily ceased to be a member of the plan on the day before the relevant splittable payment becomes payable. (3) If: (a) the whole, or any component, of the superannuation interest is a defined benefit interest, or the superannuation interest is in a self managed superannuation fund; and (b) the adjustment period is a financial year; the interest rate for the adjustment period is the rate determined by the Australian Government Actuary, and published in the Gazette, being a rate that is 2.5 percentage points above the percentage change in the original estimate of full‑time adult ordinary time earnings for all persons in Australia, as published by the Australian Bureau of Statistics during the year ending with the November quarter immediately before the beginning of the adjustment period. (4) If: (a) the whole, or any component, of the superannuation interest is a defined benefit interest, or the superannuation interest is in a self managed superannuation fund; and (b) the adjustment period is a period of less than 12 months that begins and ends within a financial year; the interest rate for the adjustment period is the rate calculated in accordance with a method determined by the Australian Government Actuary, and published in the Gazette, being a method that provides for calculation of a rate by reference to a rate that is 2.5 percentage points above the percentage change in the original estimate of full‑time adult ordinary time earnings for all persons in Australia, as published by the Australian Bureau of Statistics during the year ending with the November quarter immediately before the beginning of the financial year in which the adjustment period occurs. (5) If: (a) the whole, or any component, of the superannuation interest is a defined benefit interest, or the superannuation interest is in a self managed superannuation fund; and (b) the adjustment period is: (i) a period of 12 months that is not a financial year; or (ii) a period of less than 12 months; and (c) the adjustment period commences before 30 June in a financial year and ends during the following financial year; the interest rate for the adjustment period is the rate calculated under subregulation (6). (6) For subregulation (5), the rate is calculated in accordance with a method determined by the Australian Government Actuary, and published in the Gazette, being a method that provides for the calculation of a rate by reference to the following rates: (a) a rate that is 2.5 percentage points above the percentage change in the original estimate of full‑time adult ordinary time earnings for all persons in Australia, as published by the Australian Bureau of Statistics, during the year ending with the November quarter in the financial year ending immediately before the commencement of the adjustment period; (b) a rate that is 2.5 percentage points above the percentage change in the original estimate of full‑time adult ordinary time earnings for all persons in Australia, as published by the Australian Bureau of Statistics, during the year ending with the November quarter in the financial year in which the adjustment period commenced. ### Division 6.2—Superannuation interest in growth phase at date of service of agreement or date of order #### 46 Application of Division 6.2 (Act s 90XJ, s 90XT, s 90YN, s 90YY) (1) For sections 90XJ and 90YN of the Act and regulation 16, and paragraphs 90XT(1)(a) and 90YY(1)(a) of the Act and paragraph 23(2)(a) of these Regulations, this Division sets out how to calculate the amount (if any) that the non‑member spouse is entitled to be paid under a payment split in respect of a splittable payment that becomes payable in respect of a superannuation interest of a member spouse if: (a) the interest is not a percentage‑only interest; and (b) in the case of an interest that is identified in a superannuation agreement or flag lifting agreement—the interest was in the growth phase at the date when the agreement was served on the trustee under section 90XI or 90YM of the Act; and (c) in the case of an interest in relation to which a splitting order applies—the interest was in the growth phase at the date of the order. > Note: This Division does not apply to a payment split in respect of a small superannuation accounts interest—see paragraphs 16(1)(a) and 23(1)(b) of these Regulations. (2) If the payment split is a second or later payment split applicable to the splittable payment, this Division applies as modified in accordance with Schedule 7. > Note: Sections 90XX and 90YZN of the Act provide in relation to the order in which multiple payment splits that apply to the same splittable payment are to be calculated. #### 49 Amount to be paid to non‑member spouse—benefit payable only as lump sum that is equal to or more than adjusted base amount (1) This regulation applies in relation to the superannuation interest if: (a) the first splittable payment that the member spouse or other person is entitled to receive is a lump sum (other than a lump sum that the member spouse or other person may be entitled to receive because the member spouse or other person may choose, by way of a commutation of a pension payable to him or her, or otherwise, to take the whole, or a part, of the benefits in respect of the interest, as a lump sum); and (b) the lump sum is equal to or more than the amount of the adjusted base amount applicable to the non‑member spouse at the time the splittable payment becomes payable. (2) The amount that the non‑member spouse is entitled to be paid from the lump sum is the amount that is equal to the amount of the adjusted base amount applicable to the non‑member spouse at that time. (3) The non‑member spouse is not entitled to be paid any amount from any other splittable payment in respect of the superannuation interest. #### 50 Amount to be paid to non‑member spouse—benefit payable only as lump sum that is less than adjusted base amount (1) This regulation applies in relation to the superannuation interest if: (a) the first splittable payment that the member spouse or other person is entitled to receive is a lump sum (other than a lump sum that the member spouse or other person may be entitled to receive because the member spouse or other person may choose, by way of a commutation of a pension payable to him or her, or otherwise, to take the whole, or a part, of the benefits in respect of the interest, as a lump sum); and (b) the lump sum is less than the amount of the adjusted base amount applicable to the non‑member spouse at the time the splittable payment becomes payable. (2) The amount that the non‑member spouse is entitled to be paid in respect of the superannuation interest is: (a) the amount of the lump sum; and (b) unless regulation 51 applies in relation to the interest, the amount, calculated in accordance with subregulation (3), from each other splittable payment that becomes payable in respect of the interest. (3) For paragraph (2)(b), the amount to be paid to the non‑member spouse from each other splittable payment that becomes payable in respect of the superannuation interest is calculated in accordance with the following formula:  where: > ABA is the adjusted base amount applicable to the non‑member spouse at the date when the first splittable payment becomes payable in respect of the superannuation interest. > X is the amount of the lump sum paid to the non‑member spouse under paragraph (2)(a). > SP is the amount of the relevant splittable payment. > A is the amount in relation to the superannuation interest at the date when the first splittable payment became payable in respect of the superannuation interest, determined in accordance with the relevant method set out in Division 5.2, as if references in that Division to ‘the relevant date’ were references to ‘the date when the first splittable payment became payable in respect of the superannuation interest’. #### 51 Amount to be paid to non‑member spouse—optional lump sum from remaining benefits (1) This regulation applies in relation to the superannuation interest if: (a) the non‑member spouse is entitled to be paid the amount of a lump sum in respect of the interest under paragraph 50(2)(a); and (b) the member spouse or other person may, under the governing rules of the relevant eligible superannuation plan, choose (by way of a commutation of a pension payable to him or her, or otherwise) to take the whole, or a part, of the remaining benefits in respect of the interest as a lump sum; and (c) the non‑member spouse has served a request, in accordance with Form 2 in Schedule 1, on the trustee of the plan requesting that the non‑member spouse be paid, as a lump sum, the whole, or a proportion, of the remaining adjusted base amount applicable to the non‑member spouse at that time; and (d) any choice by the member spouse or other person to be paid the amount requested by the non‑member spouse will not cause the member spouse or other person to lose the right to take the remaining part of the benefits in respect of the interest as a pension. (2) If the non‑member spouse has requested to be paid, as a lump sum, the whole of the remaining adjusted base amount applicable to the non‑member spouse at that time: (a) the member spouse or other person must choose to be paid, as a lump sum, an amount that is at least the amount calculated in accordance with subregulation (3); and (b) the non‑member spouse is entitled to be paid that amount; and (c) the non‑member spouse is not entitled to be paid any amount from any other splittable payment in respect of the superannuation interest. (3) For paragraph (2)(a), the amount of the lump sum is calculated in accordance with the following formula:  where: > ABA is the adjusted base amount applicable to the non‑member spouse at the date when the first splittable payment became payable in respect of the superannuation interest. > X is the amount of the lump sum paid to the non‑member spouse under paragraph 50(2)(a). > Comm is the commutation factor for converting to a lump sum, under the governing rules of the plan, a pension payable to the member spouse or other person, if the pension were to be converted to a lump sum at: (a) if the relevant splittable payment in respect of the superannuation interest is payable to the member spouse—the date of the first splittable payment to the member spouse in respect of the superannuation after the operative time; or (b) if the relevant splittable payment in respect of the superannuation interest is payable to another person for the benefit of the member spouse—the earliest date when the pension could be commuted to a lump sum; or (c) if the relevant splittable payment in respect of the superannuation interest is payable to a reversionary beneficiary after the death of the member spouse—the date of the member spouse’s death; or (d) if the relevant splittable payment in respect of the superannuation interest is payable to the legal personal representative of the member spouse after the death of the member spouse, or the legal personal representative of a reversionary beneficiary covered by paragraph 90XE(1)(d) or 90YD(1)(d) of the Act after the death of that reversionary beneficiary—the earliest date at which the legal personal representative could choose to take the remaining benefits in respect of the interest as a lump sum. > Py+m is the pension valuation factor that applies to the particular pension payable to the member spouse or other person at the date that applies under the definition of the factor Comm in this subregulation, being: (a) if, under regulation 43A, the Minister has approved a method or factors to be used to determine the gross value of a superannuation interest the benefits in respect of which are being paid as a pension that is payable for the life of the member spouse—the approved factor or the factor that applies under the approved method; or (b) in any other case—the pension valuation factor under Schedule 4 or 5. (4) If the non‑member spouse has requested to be paid, as a lump sum, a proportion of the remaining adjusted base amount applicable to the non‑member spouse at that time: (a) the member spouse or other person must choose to be paid, as a lump sum, an amount that is at least the amount calculated in accordance with subregulation (5) (the minimum lump sum); and (b) the non‑member spouse is entitled to be paid: (i) that amount; and (ii) the amount, calculated in accordance with subregulation (6), from: (A) if the member spouse or other person chooses to be paid, as a lump sum, an amount that is more than the minimum lump sum—the amount that is the difference between the actual lump sum paid and the minimum lump sum; and (B) each other splittable payment that becomes payable in respect of the superannuation interest. (5) For paragraph (4)(a), the amount of the minimum lump sum is calculated in accordance with the following formula:  where: > ABA is the amount of the adjusted base amount applicable to the non‑member spouse at the date when the first splittable payment became payable in respect of the superannuation interest. > X is the amount of the lump sum paid to the non‑member spouse under paragraph 50(2)(a). > Prop. is the proportion of the remaining adjusted base amount applicable to the non‑member spouse that the non‑member spouse has requested to be paid, as a lump sum, to him or her in the request served on the trustee. > Comm has the same meaning as in subregulation (3). > Py+m has the same meaning as in subregulation (3). (6) For subparagraph (4)(b)(ii), the amount is calculated in accordance with the following formula:  where: > ABA is the amount of the adjusted base amount applicable to the non‑member spouse at the date when the first splittable payment became payable in respect of the superannuation interest. > X is the amount of the lump sum paid to the non‑member spouse under paragraph 50(2)(a). > Prop. is the proportion of the remaining adjusted base amount applicable to the non‑member spouse that the non‑member spouse has requested to be paid, as a lump sum, to him or her in the request served on the trustee. > SP is: (a) if applicable, the amount of the difference between the actual lump sum paid to the member spouse and the minimum lump sum; or (b) the amount of the relevant splittable payment. > rV is the remaining value of the superannuation interest after the payment of the lump sums to the non‑member spouse under paragraph 50(2)(a) and subparagraph (4)(b)(ii) of this regulation, calculated in accordance with subregulation (7). (7) For subregulation (6), the remaining value (rV) of the superannuation interest after the payment of the lump sums to the non‑member spouse under paragraph 50(2)(a) and subparagraph (4)(b)(ii) of this regulation is calculated in accordance with the following formula:  where: > A has the meaning given by subregulation 50(3). > X is the amount of the lump sum paid to the non‑member spouse under paragraph 50(2)(a). > Y is the amount of the lump sum paid to the non‑member spouse under subparagraph (4)(b)(i) of this regulation. > Py+m has the same meaning as in subregulation (3). > Comm has the same meaning as in subregulation (3). #### 52 Amount to be paid to non‑member spouse—optional lump sum—payment of whole of adjusted base amount (1) This regulation applies in relation to the superannuation interest if: (a) benefits in respect of the interest are not payable as an allocated pension or a market linked pension; and (b) the member spouse or other person may, under the governing rules of the relevant eligible superannuation plan, choose (by way of a commutation of a pension payable to him or her, or otherwise) to take a lump sum that is at least the amount of the adjusted base amount applicable to the non‑member spouse at that time without losing the right to take the remaining part of the benefits in respect of the interest as a pension; and (c) the non‑member spouse has served a request, in accordance with Form 3 in Schedule 1, on the trustee of the plan requesting that the non‑member spouse be paid, as a lump sum, the whole of the adjusted base amount applicable to the non‑member spouse at the time the splittable payment becomes payable. (2) The member spouse must choose to be paid, as a lump sum, an amount that is at least the amount calculated in accordance with the following formula:  where: > ABA is the amount of the adjusted base amount applicable to the non‑member spouse at the date when the first splittable payment becomes payable in respect of the superannuation interest. > Comm has the same meaning as in subregulation 51(3). > Py+m has the same meaning as in subregulation 51(3). (3) The amount that the non‑member spouse is entitled to be paid in respect of the superannuation interest is the amount calculated in accordance with subregulation (2). (4) The non‑member spouse is not entitled to be paid any amount from any other splittable payment in respect of the superannuation interest. #### 53 Amount to be paid to non‑member spouse—optional lump sum—payment of part of adjusted base amount (1) This regulation applies in relation to the superannuation interest if: (a) benefits in respect of the interest are not payable as an allocated pension or a market linked pension; and (b) the member spouse or other person may, under the governing rules of the relevant eligible superannuation plan, choose (by way of a commutation of a pension payable to him or her, or otherwise) to take a lump sum that is at least the amount of the adjusted base amount applicable to the non‑member spouse at that time without losing the right to take the remaining part of the benefits in respect of the interest as a pension; and (c) the non‑member spouse has served a request, in accordance with Form 3 in Schedule 1, on the trustee of the plan requesting that the non‑member spouse be paid, as a lump sum, a proportion of the adjusted base amount applicable to the non‑member spouse at that time. (2) The member spouse must choose to be paid, as a lump sum, an amount that is at least the amount calculated in accordance with the following formula (the minimum lump sum):  where: > ABA is the amount of the adjusted base amount applicable to the non‑member spouse at the date when the first splittable payment becomes payable in respect of the superannuation interest (the applicable adjusted base amount). > Prop. is the proportion of the applicable adjusted base amount that the non‑member spouse has requested to be paid, as a lump sum, to him or her in the request served on the trustee. > Comm has the same meaning as in subregulation 51(3). > Py+m has the same meaning as in subregulation 51(3). (3) The amount that the non‑member spouse is entitled to be paid in respect of the superannuation interest is: (a) the amount of the minimum lump sum; and (b) the amount, calculated in accordance with subregulation (4), from: (i) if the member spouse chooses to be paid, as a lump sum, an amount that is more than the minimum lump sum—the amount that is the difference between the actual lump sum paid and the minimum lump sum; and (ii) each other splittable payment that becomes payable in respect of the superannuation interest. (4) For paragraph (3)(b), the amount is calculated in accordance with the following formula:  where: > ABA is the amount of the adjusted base amount applicable to the non‑member spouse at the date when the first splittable payment became payable in respect of the superannuation interest (the applicable adjusted base amount). > Prop. is the proportion of the applicable adjusted base amount that the non‑member spouse has requested to be paid, as a lump sum, to him or her in the request served on the trustee. > SP is: (a) if applicable, the amount of the difference between the actual lump sum paid to the member spouse and the minimum lump sum; or (b) the amount of the relevant splittable payment. > A has the meaning given by subregulation 50(3). > Y is the amount of the lump sum paid to the non‑member spouse under paragraph (3)(a). > Py+m has the same meaning as in subregulation 51(3). > Comm has the same meaning as in subregulation 51(3). #### 54 Amount to be paid to non‑member spouse—no benefit payable only as lump sum or first splittable payment not lump sum (1) This regulation applies in relation to the superannuation interest if: (a) benefits in respect of the interest are not payable as an allocated pension or a market linked pension, and no benefit is payable to the member spouse or other person as a lump sum (including a lump sum that the member spouse or other person may choose to take, by way of a commutation of a pension payable to him or her, or otherwise, in respect of the whole, or a part, of the benefits in respect of the interest); or (b) the first splittable payment that the member spouse or other person is entitled to receive is not a lump sum, but a lump sum is payable in respect of the interest at a later time. (2) The amount that the non‑member spouse is entitled to be paid in respect of each splittable payment that becomes payable in respect of the superannuation interest is:  where: > ABA is the adjusted base amount applicable to the non‑member spouse at the date when the first splittable payment becomes payable in respect of the superannuation interest. > SP is the amount of the relevant splittable payment. > A is the amount in relation to the superannuation interest at the date when the first splittable payment becomes payable in respect of the superannuation interest, determined in accordance with the relevant method set out in Division 5.2, as if references in that Division to ‘the relevant date’ were references to ‘the date when the first splittable payment becomes payable in respect of the superannuation interest’. #### 54A Amount to be paid to non‑member spouse—benefits payable as allocated pension or market linked pension (1) This regulation applies in relation to the superannuation interest if: (a) the whole, or a part, of the benefits in respect of the interest are payable as an allocated pension or a market linked pension; and (b) regulation 49 does not apply in relation to the interest. (2) When a splittable payment becomes payable in respect of the superannuation interest, being an interest in respect of which the whole, or a part, of the benefits are payable as an allocated pension and not as a market linked pension, the non‑member spouse is entitled to be paid, from the lump sum from which the allocated pension is payable, the amount of the adjusted base amount applicable to the non‑member spouse at that time. (3) When a splittable payment becomes payable in respect of the superannuation interest, being an interest in respect of which the whole, or a part, of the benefits are payable as a market linked pension and not as an allocated pension, the non‑member spouse is entitled to be paid, from the lump sum from which the market linked pension is payable, the amount of the adjusted base amount applicable to the non‑member spouse at that time. (4) When a splittable payment becomes payable in respect of the superannuation interest, being an interest in respect of which part of the benefits are payable as an allocated pension and part of the benefits are payable as a market linked pension, the non‑member spouse is entitled to be paid: (a) if the amount of the lump sum from which the allocated pension is payable is equal to, or more than, the amount of the adjusted base amount applicable to the non‑member spouse at that time—from that lump sum, the amount of the adjusted base amount applicable to the non‑member spouse at that time; or (b) if the amount of the lump sum from which the allocated pension is payable is less than the amount of the adjusted base amount applicable to the non‑member spouse at that time: (i) the amount of the lump sum from which the allocated pension is payable; and (ii) so much of the amount of the lump sum from which the market linked pension is payable as is needed to pay the balance of the amount of the adjusted base amount applicable to the non‑member spouse at that time. (5) Subject to subregulation (6), the non‑member spouse is not entitled to be paid any amount from any other splittable payment in respect of the superannuation interest. (6) If the lump sum mentioned in subregulation (2) or (3), or the total of the lump sums mentioned in subparagraphs (4)(b)(i) and (ii), is less than the amount of the adjusted base amount applicable to the non‑member spouse at the time the splittable payment becomes payable, the non‑member spouse is entitled to be paid: (a) the amount of the lump sum, or lump sums, as the case requires; and (b) from each other splittable payment that becomes payable in respect of the superannuation interest, the amount calculated in accordance with subregulation (7). (7) For paragraph (6)(b), the amount is calculated in accordance with the following formula:  where: > ABA is the adjusted base amount applicable to the non‑member spouse at the date when the first splittable payment becomes payable in respect of the superannuation interest. > X is the amount of the lump sum, or lump sums, paid to the non‑member spouse under paragraph (6)(a). > SP is the amount of the relevant splittable payment. > A has the meaning given by subregulation 50(3). ### Division 6.3—Superannuation interest in payment phase at date of service of agreement or date of order #### Subdivision 6.3.1—Application of Division 6.3 #### 55 Application of Division 6.3 (Act s 90XJ, s 90XT, s 90YN, s 90YY) For sections 90XJ and 90YN of the Act and subregulation 17(2), and paragraphs 90XT(1)(a) and 90YY(1)(a) of the Act and paragraph 23(2)(b) of these Regulations, this Division sets out how to calculate the amount (if any) that the non‑member spouse is entitled to be paid under a payment split in respect of a splittable payment that becomes payable in respect of a superannuation interest of a member spouse if: (a) the interest is not a percentage‑only interest; and (b) in the case of an interest that is identified in a superannuation agreement or flag lifting agreement: (i) the agreement states that the base amount is a total amount that relates to the whole of the superannuation interest, or the base amount is taken to be a total amount that relates to the whole of the superannuation interest; and (ii) the interest was in the payment phase at the date when the agreement was served on the trustee under section 90XI or 90YM of the Act; and (c) in the case of an interest in relation to which a splitting order under paragraph 90XT(1)(a) or 90YY(1)(a) of the Act applies—the interest was in the payment phase at the date of the order. > Note: This Division does not apply to a payment split in respect of a small superannuation accounts interest—see paragraphs 17(1)(a) and 23(1)(b) of these Regulations. #### Subdivision 6.3.2—First or only payment split #### 55A Application of Subdivision 6.3.2 This Subdivision sets out how to calculate the non‑member spouse’s entitlement under the payment split if the payment split is the first or only payment split applicable to the splittable payment. #### 56 Amount to be paid to non‑member spouse—first splittable payment after operative time equal to or more than base amount (1) This regulation applies in relation to the superannuation interest if: (a) the first splittable payment that becomes payable in respect of the interest after the operative time is not a payment in respect of an allocated pension or a market linked pension; and (b) the amount of that payment is equal to or more than the amount of the base amount allocated to the non‑member spouse in relation to the interest. (2) The amount that the non‑member spouse is entitled to be paid from the first splittable payment is the amount that is equal to the base amount allocated to the non‑member spouse in relation to the superannuation interest. (3) The non‑member spouse is not entitled to be paid any amount from any other splittable payment in respect of the superannuation interest. #### 57 Amount to be paid to non‑member spouse—first splittable payment after operative time less than base amount (1) This regulation applies in relation to the superannuation interest if: (a) the first splittable payment that becomes payable in respect of the interest after the operative time is not a payment in respect of an allocated pension or a market linked pension; and (b) the amount of that payment is less than the amount of the base amount allocated to the non‑member spouse in relation to the interest. (2) The amount that the non‑member spouse is entitled to be paid in respect of the superannuation interest is: (a) the amount of the first splittable payment; and (b) unless regulation 58 applies in relation to the interest, the amount, calculated in accordance with subregulation (3), from each other splittable payment that becomes payable in respect of the interest. (3) For paragraph (2)(b), the amount to be paid to the non‑member spouse from each other splittable payment that becomes payable in respect of the superannuation interest is calculated in accordance with the following formula:  where: > BA is the base amount allocated to the non‑member spouse in relation to the superannuation interest. > X is the amount of the first splittable payment paid to the non‑member spouse under paragraph (2)(a). > SP is the amount of the relevant splittable payment. > A is the amount in relation to the superannuation interest at the date when the first splittable payment became payable in respect of the superannuation interest after the operative time, determined in accordance with the relevant method set out in Division 5.2, as if references in that Division to ‘the relevant date’ were references to ‘the date when the first splittable payment became payable in respect of the superannuation interest after the operative time’. #### 58 Amount to be paid to non‑member spouse—optional lump sum from remaining benefits (1) This regulation applies in relation to the superannuation interest if: (a) the non‑member spouse is entitled to be paid the amount of the first splittable payment in respect of the interest after the operative time under paragraph 57(2)(a); and (b) the member spouse may, under the governing rules of the relevant eligible superannuation plan, choose (by way of a commutation of a pension payable to him or her, or otherwise) to take the whole, or a part, of the remaining benefits in respect of the interest as a lump sum; and (c) the non‑member spouse has served a request, in accordance with Form 4 in Schedule 1, on the trustee of the plan requesting that the non‑member spouse be paid, as a lump sum, the whole, or a proportion, of the remaining base amount allocated to the non‑member spouse in relation to the interest; and (d) any choice by the member spouse to be paid the amount requested by the non‑member spouse will not cause the member spouse to lose the right to take the remaining part of the benefits in respect of the interest as a pension. (2) If the non‑member spouse has requested to be paid, as a lump sum, the whole of the remaining base amount allocated to the non‑member spouse in relation to the superannuation interest: (a) the member spouse must choose to be paid, as a lump sum, an amount that is at least the amount calculated in accordance with subregulation (3); and (b) the non‑member spouse is entitled to be paid that amount; and (c) the non‑member spouse is not entitled to be paid any amount from any other splittable payment in respect of the superannuation interest. (3) For paragraph (2)(a), the amount of the lump sum is calculated in accordance with the following formula:  where: > BA is the base amount allocated to the non‑member spouse in relation to the superannuation interest. > X is the amount of the first splittable payment paid to the non‑member spouse under paragraph 57(2)(a). > Comm has the same meaning as in subregulation 51(3). > Py+m has the same meaning as in subregulation 51(3). (4) If the non‑member spouse has requested to be paid, as a lump sum, a proportion of the remaining base amount allocated to the non‑member spouse in relation to the superannuation interest: (a) the member spouse must choose to be paid, as a lump sum, an amount that is at least the amount calculated in accordance with subregulation (5) (the minimum lump sum); and (b) the non‑member spouse is entitled to be paid: (i) that amount; and (ii) the amount, calculated in accordance with subregulation (6), from: (A) if the member spouse chooses to be paid, as a lump sum, an amount that is more than the minimum lump sum—the amount that is the difference between the actual lump sum paid and the minimum lump sum; and (B) each other splittable payment that becomes payable in respect of the superannuation interest. (5) For paragraph (4)(a), the amount of the minimum lump sum is calculated in accordance with the following formula:  where: > BA is the base amount allocated to the non‑member spouse in relation to the superannuation interest. > X is the amount of the first splittable payment paid to the non‑member spouse under paragraph 57(2)(a). > Prop. is the proportion of the remaining base amount allocated to the non‑member spouse in relation to the interest that the non‑member spouse has requested to be paid, as a lump sum, to him or her in the request served on the trustee. > Comm has the same meaning as in subregulation 51(3). > Py+m has the same meaning as in subregulation 51(3). (6) For subparagraph (4)(b)(ii), the amount is calculated in accordance with the following formula:  where: > BA is the base amount allocated to the non‑member spouse in relation to the superannuation interest. > X is the amount of the first splittable payment paid to the non‑member spouse under paragraph 57(2)(a). > Prop. is the proportion of the remaining base amount allocated to the non‑member spouse in relation to the interest that the non‑member spouse has requested to be paid, as a lump sum, to him or her in the request served on the trustee. > SP is: (a) if applicable, the amount of the difference between the actual lump sum paid to the member spouse and the minimum lump sum; or (b) the amount of the relevant splittable payment. > rV is the remaining value of the superannuation interest after the payment of the lump sums to the non‑member spouse under paragraph 57(2)(a) and subparagraph (4)(b)(ii) of this regulation, calculated in accordance with subregulation (7). (7) For subregulation (6), the remaining value (rV) of the superannuation interest after the payment of the lump sums to the non‑member spouse under paragraph 57(2)(a) and subparagraph (4)(b)(ii) of this regulation is calculated in accordance with the following formula:  where: > A has the meaning given by subregulation 57(3). > X is the amount of the lump sum paid to the non‑member spouse under paragraph 57(2)(a). > Y is the amount of the lump sum paid to the non‑member spouse under subparagraph (4)(b)(i) of this regulation. > Py+m has the same meaning as in subregulation 51(3). > Comm has the same meaning as in subregulation 51(3). #### 58A Amount to be paid to non‑member spouse—benefits payable as allocated pension or market linked pension (1) This regulation applies in relation to the superannuation interest if the first splittable payment that becomes payable in respect of the interest after the operative time is a payment in respect of an allocated pension or a market linked pension. (2) When a splittable payment becomes payable in respect of the superannuation interest, being an interest in respect of which the whole, or a part, of the benefits are payable as an allocated pension and not as a market linked pension, the non‑member spouse is entitled to be paid, from the lump sum from which the allocated pension is payable, the amount of the base amount allocated to the non‑member spouse in relation to the interest. (3) When a splittable payment becomes payable in respect of the superannuation interest, being an interest in respect of which the whole, or a part, of the benefits are payable as a market linked pension and not as an allocated pension, the non‑member spouse is entitled to be paid, from the lump sum from which the market linked pension is payable, the amount of the base amount allocated to the non‑member spouse in relation to the interest. (4) When a splittable payment becomes payable in respect of the superannuation interest, being an interest in respect of which part of the benefits are payable as an allocated pension and part of the benefits are payable as a market linked pension, the non‑member spouse is entitled to be paid: (a) if the amount of the lump sum from which the allocated pension is payable is equal to, or more than, the amount of the base amount allocated to the non‑member spouse in relation to the interest—from that lump sum, the amount of the base amount allocated to the non‑member spouse in relation to the interest; or (b) if the amount of the lump sum from which the allocated pension is payable is less than the amount of the base amount allocated to the non‑member spouse in relation to the interest: (i) the amount of the lump sum from which the allocated pension is payable; and (ii) so much of the amount of the lump sum from which the market linked pension is payable as is needed to pay the balance of the amount of the base amount allocated to the non‑member spouse in relation to the interest. (5) Subject to subregulation (6), the non‑member spouse is not entitled to be paid any amount from any other splittable payment in respect of the superannuation interest. (6) If the lump sum mentioned in subregulation (2) or (3), or the total of the lump sums mentioned in subparagraphs (4)(b)(i) and (ii), is less than the amount of the base amount applicable to the non‑member spouse at the time the splittable payment becomes payable, the non‑member spouse is entitled to be paid: (a) the amount of the lump sum, or lump sums, as the case requires; and (b) from each other splittable payment that becomes payable in respect of the superannuation interest, the amount calculated in accordance with subregulation (7). (7) For paragraph (6)(b), the amount is calculated in accordance with the following formula:  where: > BA is the base amount allocated to the non‑member spouse in relation to the superannuation interest. > X is the amount of the lump sum, or lump sums, paid to the non‑member spouse under paragraph (6)(a). > SP is the amount of the relevant splittable payment. > A has the meaning given by subregulation 50(3). #### Subdivision 6.3.3—Second or later payment split #### 58B Application of Subdivision 6.3.3 This Subdivision sets out how to calculate the non‑member spouse’s entitlement under the payment split if the payment split is a second or later payment split applicable to the splittable payment. #### 58C Amount to be paid to non‑member spouse—first splittable payment after operative time equal to or more than amount of earlier payments plus base amount (1) This regulation applies in relation to the superannuation interest if: (a) the first splittable payment that becomes payable in respect of the interest after the operative time is not a payment in respect of an allocated pension or a market linked pension; and (b) the amount of that payment is equal to or more than the sum of: (i) the amount payable under subregulation 50(3), 51(6), 53(4), 54(2), 57(3) or 58(6) or this regulation to each other person under a payment split with an earlier operative time; and (ii) the base amount allocated to the non‑member spouse in relation to the interest. (2) The amount that the non‑member spouse is entitled to be paid in respect of the first splittable payment is the base amount. (3) The non‑member spouse is not entitled to be paid any amount from any other splittable payment in respect of the superannuation interest. #### 58D Amount to be paid to non‑member spouse—first splittable payment after operative time less than amount of earlier payments plus base amount (1) This regulation applies in relation to the superannuation interest if: (a) the first splittable payment that becomes payable in respect of the interest after the operative time is not a payment in respect of an allocated pension or a market linked pension; and (b) the amount of that payment is less than the sum of: (i) the amount payable under subregulation 50(3), 51(6), 53(4), 54(2), 57(3) or 58(6) or this regulation to each other person under a payment split with an earlier operative time; and (ii) the base amount allocated to the non‑member spouse in relation to the interest. (2) The amount that the non‑member spouse is entitled to be paid in respect of the superannuation interest is: (a) the amount of the first splittable payment; and (b) from each other splittable payment that becomes payable in respect of the interest, the amount calculated in accordance with subregulation (3). > Note for paragraph (a): Because of the operation of subsections 90XX(3) and 90YZN(3) of the Act, the amount under paragraph (a) will be the amount of the first splittable payment as reduced by the amount to which another person is entitled under each payment split with an earlier operative time. (3) For paragraph (2)(b), the amount is calculated in accordance with the following formula:  where: > BA is the base amount allocated to the non‑member spouse in relation to the superannuation interest. > X is the amount of the first splittable payment paid to the non‑member spouse under paragraph (2)(a). > SP is the amount of the relevant splittable payment. > A has the meaning given by subregulation 57(3). #### 58E Amount to be paid to non‑member spouse—benefits payable as allocated pension or market linked pension (1) This regulation applies in relation to the superannuation interest if the first splittable payment that becomes payable in respect of the interest after the operative time is: (a) a payment in respect of an allocated pension; or (b) a payment in respect of a market linked pension. (2) The non‑member spouse is entitled to be paid the amounts calculated in accordance with regulation 58A. ## Part 7—General provisions about payment splitting ### Division 7.1—General #### 59 Fees payable to trustee (Act s 90XY, s 90YZO) (1) The trustee of an eligible superannuation plan may charge reasonable fees in respect of any of the following: (a) a payment split; (b) a payment flag; (c) flag lifting under a flag lifting agreement that does not provide for a payment split; (d) an order under section 90XM or 90YR of the Act terminating the operation of a payment flag; (e) an application under section 90XZB or 90YZR of the Act for information about a superannuation interest; (f) any other thing done by the trustee in relation to a superannuation interest covered by a superannuation agreement, flag lifting agreement or splitting order. (2) A fee payable in respect of a matter mentioned in paragraph (1)(a), (b), (c), (d) or (f) is payable: (a) subject to paragraph (b), by the member spouse and the non‑member spouse in equal parts; or (b) if the fee is in respect of a payment split under which the non‑member spouse is entitled to be paid the whole of the amount of each splittable payment that becomes payable—by the non‑member spouse. (3) A fee payable in respect of an application mentioned in paragraph (1)(e) is payable by the person who makes the application. #### 60 Waiver of rights under payment split (Act s 90XZA, s 90YZQ) (1) For subsections 90XZA(2) and 90YZQ(2) of the Act, a waiver notice must be in accordance with Form 5 in Schedule 1. (2) For paragraphs 90XZA(2)(a) and 90YZQ(2)(a) of the Act, each of the following persons is a prescribed financial adviser: (a) a person who is the holder of an Australian financial services licence under section 913B of the Corporations Act 2001, being a licence that authorises the person to provide advice of the kind mentioned in paragraph 90XZA(2)(a) or 90YZQ(2)(a) (as the case may be) of the Family Law Act 1975; (b) a person who provides a financial service, within the meaning of the Corporations Act 2001, on behalf of a person mentioned in paragraph (a) in the circumstances in which that is permitted under section 911B of that Act. ### Division 7.2—Provision of information to and by trustee #### 61 Definitions for Division 7.2 In this Division: > appropriate date, in relation to the information that must be provided by the trustee of an eligible superannuation plan to an applicant, means: (a) the date when the application for the information is received by the trustee; or (b) if an earlier date is specified in the application, that date. > preserved benefits means: (a) for a member of a regulated superannuation fund or an approved deposit fund—preserved benefits in relation to the member under Subdivision 6.1.2 of the SIS Regulations; and (b) for a member of an RSA—preserved benefits in relation to the member under Subdivision 4.1.2 of the RSA Regulations. > restricted non‑preserved benefits means: (a) for a member of a regulated superannuation fund—restricted non‑preserved benefits in relation to the member under Subdivision 6.1.3 of the SIS Regulations; and (b) for a member of an RSA—restricted non‑preserved benefits in relation to the member under Subdivision 4.1.3 of the RSA Regulations. > unrestricted non‑preserved benefits means: (a) for a member of a regulated superannuation fund or an approved deposit fund—unrestricted non‑preserved benefits in relation to the member under Subdivision 6.1.4 of the SIS Regulations; and (b) for a member of an RSA—unrestricted non‑preserved benefits in relation to the member under Subdivision 4.1.4 of the RSA Regulations. #### 62 Application to trustee for information—accompanying declaration (Act s 90XZB, s 90YZR) For subsections 90XZB(2) and 90YZR(2) of the Act, the declaration accompanying an application by an eligible person, under section 90XZB or 90YZR of the Act, to the trustee of an eligible superannuation plan for information about a superannuation interest of a member of the plan must be in accordance with Form 6 in Schedule 1. #### 63 Information about certain accumulation interests (Act s 90XZB, 90YZR) (1) This regulation applies in relation to a superannuation interest of a member of an eligible superannuation plan if: (a) the interest is an accumulation interest or a component of the interest is an accumulation interest; and (b) the interest is not a percentage‑only interest or an interest in a self managed superannuation fund; and (c) regulation 68A does not apply in relation to the interest. (2) For subsections 90XZB(3) and 90YZR(3) of the Act and subject to subregulations (6), (6A) and (6B), the information about the accumulation interest that must be provided to an applicant by the trustee of the plan is as follows: (aa) if the interest is an unsplittable interest, a statement to that effect; (a) a statement indicating whether the interest is subject to a payment split or payment flag and, if the interest is subject to a payment split (other than under a superannuation agreement, flag lifting agreement or splitting order in relation to which the non‑member spouse’s entitlement has been satisfied as required by Division 2.2), the information mentioned in subregulation (5); (b) the date of commencement of the member’s service period, within the meaning of subsection 995‑1(1) of the Income Tax Assessment Act 1997; (c) the date when the member first became a member of the plan; (d) if the interest was in the payment phase at the appropriate date—the payment phase information in relation to the interest mentioned in subregulation (3); (e) if the interest was in the growth phase at the appropriate date: (i) in the case of an accumulation interest other than a partially vested accumulation interest—the growth phase information in relation to the interest mentioned in subregulation (4); and (ii) in the case of a partially vested accumulation interest—the growth phase information in relation to the interest mentioned in subregulation (4A); (ea) if the application for information specifically requests the trustee to provide information about the withdrawal benefit in relation to the member—the withdrawal benefit in relation to the member at the date when the information is provided; > Note: If an application for information specifically requests the information mentioned in paragraph (ea) to be provided, the trustee is required to provide only the information mentioned in that paragraph to the applicant, and is not required to provide any other information to the applicant under this regulation—see paragraph (6)(a). (f) details of any fees that may be charged by the trustee under paragraph 59(1)(a), (b), (c), (d) or (f). (3) For paragraph (2)(d), the payment phase information in relation to the superannuation interest is: (a) if the member is receiving ongoing pension payments in respect of an allocated pension—the withdrawal benefit in relation to the member at the appropriate date; and (aa) if the member is receiving ongoing pension payments in respect of a market linked pension—the market linked pension account balance at the appropriate date; and (b) if the member is receiving ongoing pension payments in respect of a pension other than an allocated pension or a market linked pension: (i) the amount of annual pension benefit payable to the member at the appropriate date; and (ii) a statement indicating whether the pension benefit is a lifetime pension or a fixed‑term pension; and (iii) if the pension is a fixed‑term pension: (A) the date when the pension payments commenced; and (B) the length of the term; and (iv) a statement indicating whether the pension benefit is indexed and, if so, the method of indexation; and (v) a statement indicating whether there is any reversionary beneficiary who is a non‑member spouse in relation to the pension benefit and, if so, the proportion of the ongoing pension payments that would be payable to the reversionary beneficiary on the death of the member; and > Note for paragraphs (a) and (b): The trustee is not required to provide the information mentioned in paragraph (a) or subparagraph (b)(i) unless a record of it is in the trustee’s possession, power or control—see paragraph (6)(b). (c) if a lump sum is payable to the member in respect of the interest at the date when the information is provided or at any later date, and the amount of the lump sum is known—the amount of the lump sum; and (d) if a lump sum (a future lump sum) is payable to the member in respect of the interest at a date after the date when the information is provided, and the amount of the lump sum is not known: (i) the amount of the lump sum that would have been paid at the date when the information is provided if a lump sum were payable at that date (the nominal lump sum); and (ii) the method that is to be used to index the nominal lump sum to determine the amount of the future lump sum; and (e) if a lump sum payment that would have been a superannuation lump sum, within the meaning of subsection 995‑1(1) of the Income Tax Assessment Act 1997 had been made in respect of the interest at the date when the information is provided: (i) the amount of the payment; and (ii) the value that the components of the superannuation lump sum would have had under Subdivision 307‑C of that Act would have had; and (f) a statement: (i) indicating whether the Minister has approved, under regulation 43A, a method or factors for determining the gross value of the interest; and (ii) giving details of any method or factors so approved; and (g) if the application for information specifically requests the trustee to provide it and the trustee chooses to do so—the gross value of the interest at the appropriate date, determined in accordance with: (i) whichever of the methods in regulation 41, 42 or 43 applies to the interest; or (ii) a method or factors approved by the Minister under regulation 43A. (4) For subparagraph (2)(e)(i), the growth phase information in relation to the superannuation interest (being an accumulation interest other than a partially vested accumulation interest) is as follows: (aa) the value of the benefits (before any taxes or other charges have been deducted) that would have been payable in respect of the interest at the appropriate date if the member spouse had voluntarily ceased to be a member of the plan at that date; > Note: The trustee is not required to provide this information unless a record of it is in the trustee’s possession, power or control—see paragraph (6)(c). (a) if 2 or more member information statements in relation to the interest have been provided to the member, and the appropriate date is between the valuation date stated in one statement (the earlier statement) and the valuation date stated in the next statement (the next statement): (i) the value of the interest, as stated in the earlier statement; and (ii) the value of the interest, as stated in the next statement; and (iii) the amount, and the date, of any rollover or transfer by the member, or partial payment to the member, in the period beginning on the day after the valuation date stated in the earlier statement and ending at the end of the valuation date stated in the next statement; (b) if at least one member information statement in relation to the interest has been provided to the member, and the appropriate date is before the valuation date stated in the first member information statement provided to the member (the first statement): (i) the value of the interest, as stated in the first statement; and (ii) the value of the interest at the date when the interest was acquired; and (iii) the amount, and the date, of any rollover or transfer by the member, or partial payment to the member, in the period beginning on the date when the interest was acquired and ending at the end of the valuation date stated in the first statement; (c) if at least one member information statement in relation to the interest has been provided to the member, and the appropriate date is after the valuation date stated in the most recent statement: (i) the value of the interest, as stated in the most recent statement; and (ii) the value of the interest at the date when the information is provided; and (iii) the amount, and the date, of any rollover or transfer by the member, or partial payment to the member, in the period beginning on the day after the valuation date stated in the most recent statement and ending at the end of the day when the information is provided; (ca) if no member information statement in relation to the interest has been provided to the member: (i) the value of the interest at the date when the interest was acquired; and (ii) the value of the interest at the date when the information is provided; and (iii) the amount, and the date, of any rollover or transfer by the member, or any partial payment to the member, in the period beginning on the day after the date when the interest was acquired and ending at the end of the day when the information is provided; > Note for paragraphs (a), (b), (c) and (ca): The trustee is required to provide the information mentioned in these paragraphs in certain circumstances only—see paragraph (6)(d). (d) if the interest is in a regulated superannuation fund or an RSA: (i) the amount of restricted non‑preserved benefits that had accrued to the member, and would be payable to the member, if he or she were to resign from his or her employment on the date when the information is provided; and (ii) the amount (if any) of the member’s unrestricted non‑preserved benefits; (e) if the interest is in an approved deposit fund—the amount, at the date when the information is provided, of the member’s unrestricted non‑preserved benefits; (f) if: (i) a payment that would have been a superannuation lump sum, within the meaning of subsection 995‑1(1) of the Income Tax Assessment Act 1997 had been made in respect of the interest at the date when the information is provided; and (ii) the amount of the payment had been the amount payable to the member if he or she had voluntarily ceased to be a member of the plan— the value that the components of the superannuation lump sum would have had under Subdivision 307‑C of that Act would have had; (g) if the trustee has given information under Division 2.5 of the SIS Regulations to each member of the plan that the plan is to be reconstructed or terminated—a statement to this effect. (4A) For subparagraph (2)(e)(ii), the growth phase information in relation to the superannuation interest (being a partially vested accumulation interest) is as follows: (a) the value of the benefits (before any taxes or other charges have been deducted) that would have been payable in respect of the interest at the appropriate date if the member spouse had voluntarily ceased to be a member of the plan at that date; (aaa) a statement: (i) indicating whether the Minister has approved, under regulation 38, a method or factors for determining the gross value of the interest; and (ii) giving details of any method or factors so approved; and (aa) if the application for information specifically requests the trustee to provide it and the trustee chooses to do so—the gross value of the interest at the appropriate date, determined in accordance with Schedule 3 or in accordance with a method or factors approved by the Minister under regulation 38. > Note: The trustee is not required to provide this information unless a record of it is in the trustee’s possession, power or control—see paragraph (6)(c). (b) if 2 or more member information statements in relation to the interest have been provided to the member, and the appropriate date is between the valuation date stated in one statement (the earlier statement) and the valuation date stated in the next statement (the next statement): (i) the value of the actual vested benefit in respect of the interest, as stated in the earlier statement; and (ii) if stated in the earlier statement, the total member credit at the valuation date stated in that statement; and (iii) the value of the actual vested benefit in respect of the interest, as stated in the next statement; and (iv) if stated in the next statement, the total member credit at the valuation date stated in that statement; and (v) the amount, and the date, of any rollover or transfer by the member, or partial payment to the member, in the period beginning on the day after the valuation date stated in the earlier statement and ending at the end of the valuation date stated in the next statement; (c) if at least one member information statement in relation to the interest has been provided to the member, and the appropriate date is before the valuation date stated in the first member information statement provided to the member (the first statement): (i) the value of the actual vested benefit in respect of the interest, as stated in the first statement; and (ii) if stated in the first statement, the total member credit at the valuation date stated in that statement; and (iii) the value of the actual vested benefit in respect of the interest at the date when the interest was acquired; and (iv) the total member credit at the date when the interest was acquired; and (v) the amount, and the date, of any rollover or transfer by the member, or partial payment to the member, in the period beginning on the date when the interest was acquired and ending at the end of the valuation date stated in the first statement; (d) if at least one member information statement in relation to the interest has been provided to the member, and the appropriate date is after the valuation date stated in the most recent statement: (i) the value of the actual vested benefit in respect of the interest, as stated in the most recent statement; and (ii) if stated in the most recent statement, the total member credit at the valuation date stated in that statement; and (iii) the value of the actual vested benefit in respect of the interest at the date when the information is provided; and (iv) the total member credit at the date when the information is provided; and (v) the amount, and the date, of any rollover or transfer by the member, or partial payment to the member, in the period beginning on the day after the valuation date stated in the most recent statement and ending at the end of the day when the information is provided; (e) if no member information statement in relation to the interest has been provided to the member: (i) the value of the actual vested benefit in respect of the interest at the date when the interest was acquired; and (ii) the total member credit at the date when the interest was acquired; and (iii) the value of the actual vested benefit in respect of the interest at the date when the information is provided; and (iv) the total member credit at the date when the information is provided; and (v) the amount, and the date, of any rollover or transfer by the member, or any partial payment to the member, in the period beginning on the day after the date when the interest was acquired and ending at the end of the day when the information is provided; > Note for paragraphs (b), (c), (d) and (e): The trustee is required to provide the information mentioned in these paragraphs in certain circumstances only—see paragraph (6)(d). (f) the vesting term that applies to the interest; (g) the date when the vesting term commenced; (h) a statement indicating whether the Minister has approved, under regulation 38, a method or factors for determining the gross value of the interest and giving details of any method or factors so approved; (i) if a member information statement in relation to the interest that has been provided to the member does not include the total member credit at the valuation date stated in the statement—that information; (j) if the interest is in a regulated superannuation fund or an RSA: (i) the amount of restricted non‑preserved benefits that had accrued to the member, and would be payable to the member, if he or she were to resign from his or her employment on the date when the information is provided; and (ii) the amount (if any) of the member’s unrestricted non‑preserved benefits; (k) if the interest is in an approved deposit fund—the amount, at the date when the information is provided, of the member’s unrestricted non‑preserved benefits; (l) if: (i) a payment that would have been a superannuation lump sum, within the meaning of subsection 995‑1(1) of the Income Tax Assessment Act 1997 had been made in respect of the interest at the date when the information is provided; and (ii) the amount of the payment had been the amount payable to the member if he or she had voluntarily ceased to be a member of the plan— the value that the components of the superannuation lump sum would have had under Subdivision 307‑C of that Act would have had; (m) if the trustee has given information under Division 2.5 of the SIS Regulations to each member of the plan that the plan is to be reconstructed or terminated—a statement to this effect. (5) For paragraph (2)(a), the information that must be provided in relation to each payment split to which the superannuation interest is subject (other than under a superannuation agreement, flag lifting agreement or splitting order in relation to which the non‑member spouse’s entitlement has been satisfied as required by Division 2.2) is as follows: (a) the operative time for the payment split; (b) if the payment split is under subparagraph 90XJ(1)(c)(i) or (ii) or 90YN(1)(c)(i) or (ii) of the Act, or under a splitting order made under paragraph 90XT(1)(a) or 90YY(1)(a) of the Act, and the interest was in the payment phase at the appropriate date—the amount that, under subregulation 58(6) or 58D(3), a person is entitled to be paid from each splittable payment that becomes payable in respect of the interest; (c) if the payment split is under subparagraph 90XJ(1)(c)(i) or 90YN(1)(c)(i) of the Act, or under a splitting order made under paragraph 90XT(1)(a) or 90YY(1)(a) of the Act, and the interest was in the growth phase at the appropriate date: (i) the base amount specified in the relevant superannuation agreement or flag lifting agreement in relation to the interest; and (ii) if applicable, the adjusted base amount at the appropriate date; (d) if the payment split is under subparagraph 90XJ(1)(c)(ii) or 90YN(1)(c)(ii) of the Act and the interest was in the growth phase at the appropriate date: (i) the amount set out in the document served on the trustee under paragraph 90XI(1)(b) or 90YM(1)(b) of the Act; and (ii) if applicable, the adjusted base amount at the appropriate date; (e) if the payment split is under subparagraph 90XJ(1)(c)(iii) or 90YN(1)(c)(iii) of the Act or under a splitting order made under paragraph 90XT(1)(b) or 90YY(1)(b) of the Act—the specified percentage that is to apply to any splittable payment that becomes payable in respect of the interest. (6) The trustee is not required to provide information mentioned in this regulation to an applicant in any of the following circumstances: (a) if the application for information specifically requests the trustee to provide the information mentioned in paragraph (2)(ea) to the applicant, the trustee is not required to provide any other information mentioned in this regulation to the applicant; (b) the trustee is not required to provide the information mentioned in paragraph (3)(a) or subparagraph (3)(b)(i) to the applicant unless a record of that information is in the trustee’s possession, power or control; (c) the trustee is not required to provide the information mentioned in paragraph (4)(aa) or paragraph (4A)(a), as the case requires, to the applicant unless a record of that information is in the trustee’s possession, power or control; (d) the trustee is not required to provide the information mentioned in paragraph (4)(a), (b), (c) or (ca) or paragraph (4A)(b), (c), (d) or (e), as the case requires, to the applicant unless: (i) the application for information specifically requests the trustee to provide this information; and (ii) a record of the information is in the trustee’s possession, power or control; and (iii) a record of the information mentioned in paragraph (4)(aa) or paragraph (4A)(a), as the case requires, is not in the trustee’s possession, power or control. (6A) If: (a) the superannuation interest, or a component of the superannuation interest, is a partially vested accumulation interest; and (b) under regulation 38, the Minister has approved a method or factors to be used to determine the gross value of the superannuation interest or the component of the interest; the Minister may, by written determination, provide either or both of the following: (c) that the trustee is not required to provide the information about the interest, or the component of the interest, mentioned in one or more paragraphs of subregulation (4A); (d) that the trustee must provide other information, as specified in the determination, about the interest or the component of the interest. (6B) If, under regulation 43A, the Minister has approved a method or factors to be used to determine the gross value of the superannuation interest, the Minister may, by written determination, provide either or both of the following: (a) that the trustee is not required to provide the information about the interest mentioned in one or more paragraphs of subregulations (2) and (3); (b) that the trustee must provide other information, as specified in the determination, about the interest. (6C) A determination by the Minister under subregulation (6A) or (6B) is a legislative instrument. (7) For this regulation, a reference to the value of the interest stated in a statement: (a) is a reference to the value stated in the statement, however that value is described (for example, the member’s account balance, share in the plan, withdrawal benefit); and (b) if 2 or more values are stated in the statement, is taken to be a reference to the value of the benefits (before any taxes or other charges have been deducted) that would have been payable in respect of the interest if the member spouse had voluntarily ceased to be a member of the plan at the date at which the value is stated. (8) In this regulation: > total member credit, in relation to a superannuation interest of a member and a date, means the total amount that would be standing to the credit of the member in respect of the interest if the benefit in respect of the interest were fully vested at that date. > valuation date, in relation to a superannuation interest to which a member information statement applies, means the date as at which the value of the interest, or the total member credit, is stated in the statement. #### 63A Giving valuation information—partially vested accumulation interest (Act s 90XZB, s 90YZR) (1) If an application for information under section 90XZB or 90YZR of the Act specifically requested the trustee to provide the information mentioned in paragraph 63(4A)(aa) and the trustee, in response to that application: (a) provided the gross value of the partially vested accumulation interest at the appropriate date, determined in accordance with a method or factors approved by the Minister under regulation 38; but (b) has not provided sufficient information to enable the applicant to check whether that gross value of the interest has been correctly determined in accordance with the approved method or factors; the applicant may make an application for information that will enable the applicant do so. > Note: This subregulation applies on or after 1 July 2007 to an interest if a determination has not been made under subregulation 63(6A) requiring the trustee to give information, not otherwise required under subregulation 63(4A), which would enable the applicant to check if the gross value of the interest was correctly determined. (2) The trustee must, within a reasonable time after receiving the later application, provide the information requested by the applicant in a document that is addressed to the applicant. (3) Subregulation 68B(2) applies to information that is provided by the trustee to the applicant under this regulation. #### 64 Information about certain defined benefit interests (Act s 90XZB, s 90YZR) (1) This regulation applies in relation to a superannuation interest of a member of an eligible superannuation plan if: (a) the interest is a defined benefit interest or a component of the interest is a defined benefit interest; and (b) the interest is not a percentage‑only interest or an interest in a self managed superannuation fund; and (c) regulation 68A does not apply in relation to the interest. (2) For subsections 90XZB(3) and 90YZR(3) of the Act and subject to subregulations (6), (7), (7AA), (7A) and (7B), the information about the defined benefit interest that must be provided to an applicant by the trustee of the plan is as follows: (aa) if the interest is an unsplittable interest, a statement to that effect; (a) a statement indicating whether the interest is subject to a payment split or payment flag and, if the interest is subject to a payment split (other than under a superannuation agreement, flag lifting agreement or splitting order in relation to which the non‑member spouse’s entitlement has been satisfied as required by Division 2.2), the information mentioned in subregulation (5); (b) the date of commencement of the member’s service period, within the meaning of subsection 995‑1(1) of the Income Tax Assessment Act 1997; (c) the date when the member first became a member of the plan; (d) if the interest was in the payment phase at the appropriate date—the payment phase information in relation to the interest mentioned in subregulation (3); (e) if the interest was in the growth phase at the appropriate date and the interest is held by a member as a result of employment in which the member is or was still engaged at the appropriate date—the growth phase information mentioned in subregulation (4); (eaa) if: (i) the interest was in the growth phase at the appropriate date; and (ii) the interest is held by a member as a result of employment in which the member is or was no longer engaged at the appropriate date; and (iii) under the governing rules of the plan, the benefit in respect of the interest is payable after the date when the information is provided— the growth phase information mentioned in subregulation (4A); (ea) if the application for information specifically requests the trustee to provide information about the withdrawal benefit in relation to the member—the withdrawal benefit in relation to the member at the date when the information is provided; > Note: If an application for information specifically requests the information mentioned in paragraph (ea) to be provided, the trustee is required to provide only the information mentioned in that paragraph to the applicant, and is not required to provide any other information to the applicant under this regulation—see paragraph (6)(a). (f) details of any fees that may be charged by the trustee under paragraph 59(1)(a), (b), (c), (d) or (f). > Note: This information may not have to be provided by a secondary government trustee—see regulation 69. (3) For paragraph (2)(d), the payment phase information in relation to the superannuation interest is: (a) if the member is receiving ongoing pension payments in respect of an allocated pension—the withdrawal benefit in relation to the member at the appropriate date; and (aa) if the member is receiving ongoing pension payments in respect of a market linked pension—the market linked pension account balance at the appropriate date; and (b) if the member is receiving ongoing pension payments in respect of a pension other than an allocated pension or a market linked pension: (i) the amount of annual pension benefit payable to the member at the appropriate date; and (ii) a statement indicating whether the pension benefit is a lifetime pension or a fixed‑term pension; and (iii) if the pension is a fixed‑term pension: (A) the date when the pension payments commenced; and (B) the length of the term; and (iv) a statement indicating whether the pension benefit is indexed and, if so, the method of indexation; and (v) a statement indicating whether there is any reversionary beneficiary who is a non‑member spouse in relation to the pension benefit and, if so, the proportion of the ongoing pension payments that would be payable to the reversionary beneficiary on the death of the member; and > Note for paragraphs (a) and (b): The trustee is not required to provide the information mentioned in paragraph (a) or subparagraph (b)(i) unless a record of it is in the trustee’s possession, power or control—see paragraph (6)(b). (c) if a lump sum is payable to the member in respect of the interest at the date when the information is provided or at any later date, and the amount of the lump sum is known—the amount of the lump sum; and (d) if a lump sum (a future lump sum) is payable to the member in respect of the interest at a date after the date when the information is provided, and the amount of the lump sum is not known: (i) the amount of the lump sum that would have been paid at the date when the information is provided if a lump sum were payable at that date (the nominal lump sum); and (ii) the method that is to be used to index the nominal lump sum to determine the amount of the future lump sum; and (e) if a lump sum payment that would have been a superannuation lump sum, within the meaning of subsection 995‑1(1) of the Income Tax Assessment Act 1997 had been made in respect of the interest at the date when the information is provided: (i) the amount of the payment; and (ii) the value that the components of the superannuation lump sum would have had under Subdivision 307‑C of that Act would have had; and (f) a statement: (i) indicating whether the Minister has approved, under regulation 43A, a method or factors for determining the gross value of the interest; and (ii) giving details of any method or factors so approved; and (g) if the application for information specifically requests the trustee to provide it and the trustee chooses to do so—the gross value of the interest at the appropriate date, determined in accordance with: (i) whichever of the methods in regulation 41, 42 or 43 applies to the interest; or (ii) a method or factors approved by the Minister under regulation 43A. (4) For paragraph (2)(e), the growth phase information in relation to the superannuation interest is as follows: (a) the member’s retirement age; > Note: The term member’s retirement age is defined in regulation 3. (b) the member spouse’s accrued benefit multiple, within the meaning given by regulation 65, for any lump sum, or pension, payable in respect of the interest; (c) the salary figure, on which any benefit payable in respect of the interest would be based, assuming that the member were eligible to retire at the appropriate date; > Note: Example: If the benefit payable in respect of a member’s superannuation interest is defined by reference to the member’s final average salary, the salary figure for this paragraph would be the member’s final average salary. (d) if the benefit in respect of the interest is payable as a combination of a lump sum and a pension and the governing rules of the plan restrict the proportion of the pension that may be commuted to a lump sum—the maximum amount of pension that may be commuted to a lump sum, expressed as a percentage of the amount of the pension that would be payable if the whole benefit were to be taken as a pension; (da) if the benefit in respect of the interest is payable as a combination of a lump sum and a pension and the governing rules of the plan restrict the proportion of the lump sum that may be converted to a pension—the maximum amount of the lump sum that may be converted to a pension, expressed as a percentage of the amount of the lump sum that would be payable if the whole benefit were to be taken as a lump sum; (e) if any pension payable in respect of the interest is indexed and, if so, the method of indexation; (f) if any pension payable in respect of the interest has a guarantee period and, if so, the length of the guarantee period; (g) the conversion factor for converting a lump sum to a pension that will apply at the member’s retirement age; (h) the commutation factor for commuting a pension to a lump sum that will apply at the member’s retirement age; (i) if benefits in respect of the interest may be payable to a reversionary beneficiary who is a non‑member spouse—the proportion of payment in respect of the interest that the non‑member spouse would receive, as a reversionary beneficiary, on the death of the member; (j) unless the interest is in a constitutionally protected fund—the amount (if any) that was stated to be the surcharge debt of the member in the most recent member information statement provided to the member before the appropriate date; (k) if the interest is in a regulated superannuation fund or an RSA: (i) the amount of restricted non‑preserved benefits that had accrued to the member, and would be payable to the member, if he or she were to resign from his or her employment on the date when the information is provided; and (ii) the amount (if any) of the member’s unrestricted non‑preserved benefits; (l) if the interest is in an approved deposit fund—the amount, at the date when the information is provided, of the member’s unrestricted non‑preserved benefits; (m) if: (i) a payment that would have been a superannuation lump sum, within the meaning of subsection 995‑1(1) of the Income Tax Assessment Act 1997 had been made in respect of the interest at the date when the information is provided; and (ii) the amount of the payment had been the amount payable to the member if he or she had voluntarily ceased to be a member of the plan— the value that the components of the superannuation lump sum would have had under Subdivision 307‑C of that Act would have had; (n) a statement: (i) indicating whether the Minister has approved, under regulation 38, a method or factors for determining the gross value of the interest; and (ii) giving details of any method or factors so approved; (o) if the trustee has given information under Division 2.5 of the SIS Regulations to each member of the plan that the plan is to be reconstructed or terminated—a statement to this effect; and (p) if the application for information specifically requests the trustee to provide it and the trustee chooses to do so—the gross value of the interest at the appropriate date, determined in accordance with Schedule 2 or in accordance with a method or factors approved by the Minister under regulation 38. > Note: The trustee is not required to provide the information mentioned in paragraph (b), (c) or (j) to the applicant in certain circumstances—see paragraph (6)(d). (4A) For paragraph (2)(eaa), the growth phase information in relation to the superannuation interest is as follows: (a) if the benefit in respect of the interest is payable only as a lump sum: (i) the amount of the lump sum that would be payable at the appropriate date, or, if that amount is calculated by reference to the indexation of 2 or more specified lump sums, the amount of each lump sum at that date (excluding any superannuation contributions surcharge payable in respect of the interest), if the member were able to take, and did take, the benefit in respect of the interest at that date; and (ii) if the amount of the lump sum is calculated by reference to the indexation of the amount of one or more specified lump sums—the method of indexation in respect of each lump sum; and (iii) the earliest date when the benefit may be paid to the member (other than for death or disability); (b) if the benefit in respect of the interest is payable only as a pension: (i) if the amount of the pension payable is calculated by reference to the conversion of a lump sum amount when the pension begins to be paid: (A) the amount of the lump sum at the appropriate date (excluding any superannuation contributions surcharge payable in respect of the interest), if the member were able to take, and did take, the benefit in respect of the interest at that date; and (B) if the amount of the lump sum is calculated by reference to the indexation of the lump sum—the method of indexation; and (C) the factor for converting the lump sum to a pension that will apply at the earliest date when the benefit may be paid to the member (other than for death or disability); and (ii) in any other case: (A) the amount of the pension at the appropriate date (excluding any superannuation contributions surcharge payable in respect of the interest), if the member were able to take, and did take, the benefit in respect of the interest at that date; and (B) if the amount of the pension is determined by increasing a fixed amount in accordance with an index until the earliest date when the benefit may be paid to the member (other than for death or disability)—details about the method used to increase the amount of the pension; and (iii) if the pension is indexed when it begins to be paid—the method of indexation; and (iv) a statement about whether there is any reversionary beneficiary who is a non‑member spouse in relation to the pension benefit and, if so, the proportion of the ongoing pension payments that would be payable to the reversionary beneficiary on the death of the member; and (v) the earliest date when the benefit may be paid to the member (other than for death or disability); (c) if the benefit is payable as a lump sum, a pension, or a combination of a lump sum and a pension—the information mentioned in paragraphs (4)(d) and (da) and paragraphs (a) and (b) of this subregulation; (d) the amount (if any) of the member’s unrestricted non‑preserved benefits at the date when the information is provided; (e) the information mentioned in paragraphs (4)(j), (m), (n), (o) and (p). > Note: The trustee is not required to provide the information mentioned in paragraph (4)(j) to the applicant in certain circumstances—see paragraph (6)(d). (5) For paragraph (2)(a), the information that must be provided in relation to each payment split to which the superannuation interest is subject (other than under a superannuation agreement, flag lifting agreement or splitting order in relation to which the non‑member spouse’s entitlement has been satisfied as required by Division 2.2) is as follows: (a) the operative time for the payment split; (b) if the payment split is under subparagraph 90XJ(1)(c)(i) or (ii) or 90YN(1)(c)(i) or (ii) of the Act, or under a splitting order made under paragraph 90XT(1)(a) or 90YY(1)(a) of the Act, and the interest was in the payment phase at the appropriate date—the amount that, under subregulation 58(6) or 58D(3), a person is entitled to be paid from each splittable payment that becomes payable in respect of the interest; (c) if the payment split is under subparagraph 90XJ(1)(c)(i) or 90YN(1)(c)(i) of the Act, or under a splitting order made under paragraph 90XT(1)(a) or 90YY(1)(a) of the Act, and the interest was in the growth phase at the appropriate date: (i) the base amount specified in the relevant superannuation agreement or flag lifting agreement in relation to the interest; and (ii) if applicable, the adjusted base amount at the appropriate date; (d) if the payment split is under subparagraph 90XJ(1)(c)(ii) or 90YN(1)(c)(ii) of the Act and the interest was in the growth phase at the appropriate date: (i) the amount set out in the document served on the trustee under paragraph 90XI(1)(b) or 90YM(1)(b) of the Act; and (ii) if applicable, the adjusted base amount at the appropriate date; (e) if the payment split is under subparagraph 90XJ(1)(c)(iii) or 90YN(1)(c)(iii) of the Act or under a splitting order made under paragraph 90XT(1)(b) or 90YY(1)(b) of the Act—the specified percentage that is to apply to any splittable payment that becomes payable in respect of the interest. (6) The trustee is not required to provide information mentioned in this regulation to an applicant in any of the following circumstances: (a) if the application for information specifically requests the trustee to provide the information mentioned in paragraph (2)(ea) to the applicant, the trustee is not required to provide any other information mentioned in this regulation to the applicant; (b) the trustee is not required to provide the information mentioned in paragraph (3)(a) or subparagraph (3)(b)(i) to the applicant unless a record of that information is in the trustee’s possession, power or control; (d) the trustee is not required to provide the information mentioned in paragraph (4)(b), (c) or (j) to the applicant unless a record of that information is in the trustee’s possession, power or control. (7) If, under regulation 38, the Minister has approved a method or factors to be used to determine the gross value of a defined benefit interest, or a component of a superannuation interest that is a defined benefit interest, the Minister may, by written determination, provide either or both of the following: (a) that the trustee is not required to provide the information about the interest, or the component of the interest, mentioned in one or more paragraphs of subregulation 64(4) or (4A); (b) that the trustee must provide other information, as specified in the determination, about the interest or the component of the interest. (7AA) If, under regulation 38, the Minister has approved a method or factors to be used to determine the gross value of a superannuation interest that is made up of a component that is a defined benefit interest and a component that is an accumulation interest (other than a partially vested accumulation interest), the Minister may, by written determination, provide any or all of the following: (a) that the trustee is not required to provide the information about the component that is a defined benefit interest mentioned in one or more paragraphs of subregulation 64(4); (b) that the trustee is not required to provide the information about the component that is the accumulation interest mentioned in one or more paragraphs of subregulation 63(4); (c) that the trustee must provide other information, as specified in the determination, about the superannuation interest or a component of the superannuation interest. (7A) If, under regulation 38, the Minister has approved a method or factors to be used to determine the gross value of a superannuation interest that is made up of a component that is a defined benefit interest and a component that is a partially vested accumulation interest, the Minister may, by written determination, provide any or all of the following: (a) that the trustee is not required to provide the information about the component that is a defined benefit interest mentioned in one or more paragraphs of subregulation 64(4); (b) that the trustee is not required to provide the information about the component that is a partially vested accumulation interest mentioned in one or more paragraphs of subregulation 63(4A); (c) that the trustee must provide other information, as specified in the determination, about the interest or a component of the interest. (7B) If, under regulation 43A, the Minister has approved a method or factors to be used to determine the gross value of the superannuation interest, the Minister may, by written determination, provide either or both of the following: (a) that the trustee is not required to provide the information about the interest mentioned in one or more paragraphs of subregulations (2) and (3); (b) that the trustee must provide other information, as specified in the determination, about the interest. (8) A determination by the Minister under subregulation (7), (7AA), (7A) or (7B) is a legislative instrument. #### 64A Giving underlying valuation information—defined benefit interests (1) In this regulation: > underlying valuation information means: (a) in relation to the gross value of a superannuation interest at the appropriate date, determined in accordance with Schedule 2, being an interest to which paragraph 64(2)(e) applies—the information mentioned in paragraph 64(4)(a), (b), (c), (d), (da), (e), (f), (g), (h) or (i); or (b) in relation to the gross value of a superannuation interest at the appropriate date, determined in accordance with Schedule 2, being an interest to which paragraph 64(2)(eaa) applies—the information mentioned in paragraph 64(4A)(a), (b) or (c); or (c) in relation to the gross value of a superannuation interest at the appropriate date, determined in accordance with a method or factors approved by the Minister under regulation 38: (i) if a determination under subregulation 64(7), (7AA), (7A) or (7B) is in effect in relation to the interest—information required to be provided under the determination; or (ii) in any other case—information that will enable the applicant to check whether the gross value of the interest has been correctly determined in accordance with the approved method or factors. (3) If, on or after 1 July 2007, an application for information under section 90XZB or 90YZR of the Act specifically requested the trustee to provide the information mentioned in paragraph 64(3)(g) and the trustee, in response to that application: (a) provided the gross value of the defined benefit interest at the appropriate date, determined in accordance with a method or factors approved by the Minister under regulation 43A; but (b) has not provided sufficient information to enable the applicant to check whether that gross value of the interest has been correctly determined in accordance with the approved method or factors; the applicant may make an application for specific underlying valuation information. (4) If, on or after 1 July 2007, an application for information under section 90XZB or 90YZR of the Act specifically requested the trustee to provide the information mentioned in paragraph 64(4)(p) and the trustee, in response to that application: (a) provided the gross value of the defined benefit interest at the appropriate date, determined in accordance with a method or factors approved by the Minister under regulation 38; but (b) has not provided sufficient information to enable the applicant to check whether that gross value of the interest has been correctly determined in accordance with the approved method or factors; the applicant may make an application for specific underlying valuation information. (5) Subject to subregulation (6), the trustee must, within a reasonable time after receiving the later application, provide the underlying valuation information requested by the applicant in a document that is addressed to the applicant. (6) The trustee is not required to provide to the applicant underlying valuation information of the kind mentioned in paragraph 64(4)(b) or (c) unless a record of that information is in the trustee’s possession, power or control. (7) Subregulation 68B(2) applies to information that is provided by the trustee to the applicant under this regulation. #### 65 Information about certain defined benefit interests—meaning of accrued benefit multiple (1) For paragraph 64(4)(b), the accrued benefit multiple for a lump sum, or pension, payable in respect of a superannuation interest of a member in an eligible superannuation plan is the accrued benefit multiple that applies under this regulation. (2) If an accrued benefit multiple is defined under the governing rules of the eligible superannuation plan in which the defined benefit interest is held, the accrued benefit multiple is the multiple as defined. (3) If an accrued benefit multiple is not defined under the governing rules of the eligible superannuation plan in which the defined benefit interest is held, but a multiple is, under the governing rules of the plan, used to define the benefit payable to the member at the appropriate date, the accrued benefit multiple is that multiple. (4) If: (a) an accrued benefit multiple is not defined under the governing rules of the eligible superannuation plan in which the defined benefit interest is held; and (b) the benefit in respect of the interest is payable as a lump sum; and (c) subregulation (3) does not apply in respect of the interest; the accrued benefit multiple is:  where: > LSM is the multiple that will be applied to the member’s salary figure at the member’s earliest retirement date to calculate the lump sum retirement benefit that will be payable to the member at that date. > T1 is the period beginning on the date when the member acquired the defined benefit interest and ending at the end of the day before the appropriate date. > T2 is the period beginning on the date when the member acquired the defined benefit interest and ending at the end of the day before the member’s earliest retirement date. (5) If: (a) an accrued benefit multiple is not defined under the governing rules of the eligible superannuation plan in which the defined benefit interest is held; and (b) the benefit in respect of the interest is payable as a pension; and (c) subregulation (3) does not apply in respect of the interest; the accrued benefit multiple is:  where: > PM is the multiple that will be applied to the member’s salary figure at the member’s earliest retirement date to calculate the pension benefit that will be payable to the member at that date. > T1 is the period beginning on the date when the member acquired the defined benefit interest and ending at the end of the day before the appropriate date. > T2 is the period beginning on the date when the member acquired the defined benefit interest and ending at the end of the day before the member’s earliest retirement date. (6) For the purpose of calculating the accrued benefit multiple in respect of a defined benefit interest of a member of an eligible superannuation plan under subregulation (4) or (5), if the member’s benefit in respect of the interest will, under the governing rules of the plan, depend on the amount of contributions made by the member to the plan and no particular rate of contributions is required under the governing rules of plan, it is to be assumed that: (a) the member has contributed to the plan at the rate that, under the governing rules of the plan, is the standard rate of contributions, unless the member has exercised any election under those rules to contribute at a different rate; or (b) if, under the governing rules of the plan, a range of contribution rates is available to the member, the member has contributed to the plan at the mid‑point of that range, unless the member has exercised any election under the governing rules of the plan to contribute at a different rate. (6A) For the definitions of the factors T1 and T2 in subregulations (4) and (5), a defined benefit interest of a member of an eligible superannuation plan is acquired on the earlier of: (a) the date when the member first became a member of the plan; and (b) the date when a benefit began to accrue to the member in respect of the interest. (7) In this regulation: > member’s earliest retirement date, for a member of an eligible superannuation plan, means the first date when the member could retire and become eligible, under the governing rules of the plan, to be paid a retirement benefit in respect of the member’s superannuation interest in the plan. #### 66 Information about certain percentage‑only interests (Act s 90XZB, s 90YZR) (1) This regulation applies in relation to a superannuation interest of a member of an eligible superannuation plan if: (a) the interest is a percentage‑only interest; and (b) the interest is not an interest in a self managed superannuation fund; and (c) regulation 68A does not apply in relation to the interest. (2) For subsections 90XZB(3) and 90YZR(3) of the Act and subject to subregulation (6), the information about the superannuation interest that must be provided to an applicant by the trustee of the plan is as follows: (aa) if the interest is an unsplittable interest, a statement to that effect; (a) a statement indicating whether the interest is subject to a payment split or payment flag and, if the interest is subject to a payment split (other than under a superannuation agreement, flag lifting agreement or splitting order in relation to which the non‑member spouse’s entitlement has been satisfied as required by Division 2.2), the information mentioned in subregulation (5); (b) the date of commencement of the member’s service period, within the meaning of subsection 995‑1(1) of the Income Tax Assessment Act 1997; (c) the date when the member first became a member of the plan; (d) if the interest was in the payment phase at the appropriate date and the member is receiving ongoing pension payments—the payment phase information in relation to the interest mentioned in subregulation (3); (da) if the interest is in a superannuation annuity and was in the payment phase at the appropriate date, and the member is receiving ongoing payments of benefits (ongoing benefits) under the annuity—the payment phase information in relation to the interest mentioned in subregulation (3A); (e) if the interest (other than an interest in a deferred annuity) was in the growth phase at the appropriate date—the growth phase information in relation to the interest mentioned in subregulation (4); (eaa) if the interest is in a deferred annuity and was in the growth phase at the appropriate date—the growth phase information in relation to the interest mentioned in subregulation (4A); (ea) if the application for information specifically requests the trustee to provide information about the withdrawal benefit in relation to the member—the withdrawal benefit in relation to the member at the date when the information is provided; > Note: If an application for information specifically requests the information mentioned in paragraph (ea) to be provided, the trustee is required to provide only the information mentioned in that paragraph and paragraphs (4)(d) and (e) to the applicant, and is not required to provide any other information to the applicant under this regulation—see paragraph (6)(a). (f) details of any fees that may be charged by the trustee under paragraph 59(1)(a), (b), (c), (d) or (f). (3) For paragraph (2)(d), the payment phase information in relation to the superannuation interest is: (a) if the ongoing pension payments in respect of the interest are in respect of an allocated pension—the withdrawal benefit in relation to the member at the appropriate date; and (aa) if the ongoing pension payments are in respect of a market linked pension—the market linked pension account balance at the appropriate date; and (b) in any other case: (i) the amount of annual pension benefit payable to the member at the appropriate date; and (ii) a statement indicating whether the pension benefit is a lifetime pension or a fixed‑term pension; and (iii) if the pension is a fixed‑term pension: (A) the date when the pension payments commenced; and (B) the length of the term; and (iv) a statement indicating whether the pension benefit is indexed and, if so, the method of indexation; and (v) a statement indicating whether there is any reversionary beneficiary who is a non‑member spouse in relation to the pension benefit and, if so, the proportion of the ongoing pension payments that would be payable to the reversionary beneficiary on the death of the member. > Note: The trustee is not required to provide the information mentioned in paragraph (a) or subparagraph (b)(i) unless a record of it is in the trustee’s possession, power or control—see paragraph (6)(b). (3A) For paragraph (2)(da), the payment phase information in relation to the superannuation interest is: (a) if the ongoing benefits are paid in respect of a superannuation annuity that is an allocated annuity—the withdrawal benefit in relation to the member at the appropriate date; and (b) if the ongoing benefits are paid in respect of a superannuation annuity that is a market linked annuity—the market linked annuity account balance at the appropriate date; and (c) in any other case: (i) the amount of ongoing benefits payable to the member at the appropriate date; and (ii) a statement indicating whether the superannuation annuity is a lifetime annuity or a fixed‑term annuity; and (iii) if the superannuation annuity is a fixed‑term annuity: (A) the date when the payment of ongoing benefits commenced; and (B) the length of the term; and (iv) a statement indicating whether the superannuation annuity is indexed and, if so, the method of indexation. > Note: The trustee is not required to provide the information mentioned in paragraph (a) or subparagraph (c)(i) unless a record of it is in the trustee’s possession, power or control—see paragraph (6)(b). (4) For paragraph (2)(e), the growth phase information in relation to the superannuation interest is as follows: (a) the member’s accrued benefit multiple, as defined in the governing rules of the plan, at the appropriate date; (b) the salary figure on which any benefit payable in respect of the interest would be based, at the appropriate date; (c) unless the interest is in a constitutionally protected fund—the amount (if any) that was stated to be the surcharge debt of the member in the most recent member information statement provided to the member before the appropriate date; > Note: The trustee is not required to provide the information mentioned in paragraph (c) unless a record of it is in the trustee’s possession, power or control—see paragraph (6)(b). (d) if the interest is in a regulated superannuation fund or an RSA: (i) the amount of restricted non‑preserved benefits that had accrued to the member, and would be payable to the member, if he or she were to resign from his or her employment on the date when the information is provided; and (ii) the amount (if any) of the member’s unrestricted non‑preserved benefits; (e) if: (i) a payment that would have been a superannuation lump sum, within the meaning of subsection 995‑1(1) of the Income Tax Assessment Act 1997 had been made in respect of the interest at the date when the information is provided; and (ii) the amount of the payment had been the amount payable to the member if he or she had voluntarily ceased to be a member of the plan— the value that the components of the superannuation lump sum would have had under Subdivision 307‑C of that Act would have had; (f) if the trustee has given information under Division 2.5 of the SIS Regulations to each member of the plan that the plan is to be reconstructed or terminated—a statement to this effect. (4A) For paragraph (2)(eaa), the growth phase information in relation to the superannuation interest is as follows: (a) the account balance of the deferred annuity at the appropriate date; (b) the information mentioned in subparagraphs (4)(d)(i) and (ii) and paragraph (4)(e). (5) For paragraph (2)(a), the information that must be provided in relation to each payment split to which the superannuation interest is subject (other than under a superannuation agreement, flag lifting agreement or splitting order in relation to which the non‑member spouse’s entitlement has been satisfied as required by Division 2.2) is as follows: (a) the operative time for the payment split; (b) if the payment split is under paragraph 90XJ(1)(b) or 90YN(1)(b) of the Act: (i) the percentage specified in the relevant superannuation agreement or flag lifting agreement; and (ii) whether that percentage is to apply for the purposes of subparagraph 90XJ(1)(b)(i) or 90YN(1)(b)(i) (as the case may be) of the Act and, if so, the member’s accrued benefit multiple at separation, within the meaning of regulation 19, in relation to the non‑member spouse who has an entitlement under the payment split; (c) if the payment split is under a splitting order made under paragraph 90XT(1)(b) or 90YY(1)(b) of the Act: (i) a statement indicating that the splitting order is made under that provision of the Act; and (ii) the specified percentage that is to apply to any splittable payment that becomes payable in respect of the interest; (d) if the payment split is under a splitting order made under paragraph 90XT(1)(c) or 90YY(1)(c) of the Act: (i) a statement indicating that the splitting order is made under that provision of the Act; and (ii) the percentage specified in the order; and (iii) if the superannuation interest is in an eligible superannuation plan other than a superannuation annuity—the member’s accrued benefit multiple at separation, within the meaning of regulation 26, in relation to the non‑member spouse who has an entitlement under the payment split. (6) The trustee is not required to provide information mentioned in this regulation to an applicant in any of the following circumstances: (a) if the application for information specifically requests the trustee to provide the information mentioned in paragraph (2)(ea) to the applicant, the trustee is required to provide only the information mentioned in that paragraph and paragraphs (4)(d) and (e) to the applicant, and is not required to provide any other information mentioned in this regulation to the applicant; (b) the trustee is not required to provide the information mentioned in paragraph 3(a), subparagraph (3)(b)(i), paragraph (3A)(a), subparagraph (3A)(c)(i), paragraph (4)(c) or paragraph (4A)(a) to the applicant unless a record of that information is in the trustee’s possession, power or control. #### 67 Information about interests in self managed superannuation funds (Act s 90XZB, s 90YZR) (1) This regulation applies in relation to a superannuation interest of a member of a self managed superannuation fund unless regulation 68A applies in relation to the interest. (2) For subsections 90XZB(3) and 90YZR(3) of the Act and subject to subregulation (5), the information about the superannuation interest that must be provided to an applicant by the trustee of the plan is as follows: (aa) if the interest is an unsplittable interest, a statement to that effect; (a) a statement indicating whether the interest is subject to a payment split or payment flag and, if the interest is subject to a payment split (other than under a superannuation agreement, flag lifting agreement or splitting order in relation to which the non‑member spouse’s entitlement has been satisfied as required by Division 2.2), the information mentioned in subregulation (4); (b) the date of commencement of the member’s service period, within the meaning of subsection 995‑1(1) of the Income Tax Assessment Act 1997; (c) the date when the member first became a member of the plan; (d) if the interest was in the payment phase at the appropriate date and the member is receiving ongoing pension payments—the payment phase information in relation to the interest mentioned in subregulation (3); (e) if the interest was in the growth phase at the appropriate date and the trustee has given information, under Division 2.5 of the SIS Regulations, to each member of the plan that the plan is to be reconstructed or terminated—a statement to this effect; (ea) if the application for information specifically requests the trustee to provide information about the withdrawal benefit in relation to the member—the withdrawal benefit in relation to the member at the date when the information is provided; > Note: If an application for information specifically requests the information mentioned in paragraph (ea) to be provided, the trustee is not required to provide any other information to the applicant under this regulation—see paragraph (5)(a). (f) if requested by the applicant, a copy of the governing rules of the plan; (g) details of any fees that may be charged by the trustee under paragraph 59(1)(a), (b), (c), (d) or (f). (3) For paragraph (2)(d), the payment phase information in relation to the superannuation interest is: (a) if the ongoing pension payments in respect of the interest are in respect of an allocated pension—the withdrawal benefit in relation to the member at the appropriate date; and (aa) if the ongoing pension payments are in respect of a market linked pension—the market linked pension account balance at the appropriate date; and (b) in any other case: (i) the amount of annual pension benefit payable to the member at the appropriate date; and (ii) a statement indicating whether the pension benefit is a lifetime pension or a fixed‑term pension; and (iii) if the pension is a fixed‑term pension: (A) the date when the pension payments commenced; and (B) the length of the term; and (iv) a statement indicating whether the pension benefit is indexed and, if so, the method of indexation. > Note: The trustee is not required to provide the information mentioned in paragraph (a) or subparagraph (b)(i) unless a record of it is in the trustee’s possession, power or control—see paragraph (5)(b). (4) For paragraph (2)(a), the information that must be provided in relation to each payment split to which the superannuation interest is subject (other than under a superannuation agreement, flag lifting agreement or splitting order in relation to which the non‑member spouse’s entitlement has been satisfied as required by Division 2.2) is as follows: (a) the operative time for the payment split; (b) if the payment split is under subparagraph 90XJ(1)(c)(i) or (ii) or 90YN(1)(c)(i) or (ii) of the Act, or under a splitting order made under paragraph 90XT(1)(a) or 90YY(1)(a) of the Act, and the interest was in the payment phase at the appropriate date—the amount that, under subregulation 58(6) or 58D(3), a person is entitled to be paid from each splittable payment that becomes payable in respect of the interest; (c) if the payment split is under subparagraph 90XJ(1)(c)(i) or 90YN(1)(c)(i) of the Act, or under a splitting order made under paragraph 90XT(1)(a) or 90YY(1)(a) of the Act, and the interest was in the growth phase at the appropriate date: (i) the base amount specified in the relevant superannuation agreement or flag lifting agreement in relation to the interest; and (ii) if applicable, the adjusted base amount at the appropriate date; (d) if the payment split is under subparagraph 90XJ(1)(c)(ii) or 90YN(1)(c)(ii) of the Act and the interest was in the growth phase at the appropriate date: (i) the amount set out in the document served on the trustee under paragraph 90XI(1)(b) or 90YM(1)(b) of the Act; and (ii) if applicable, the adjusted base amount at the appropriate date; (e) if the payment split is under subparagraph 90XJ(1)(c)(iii) or 90YN(1)(c)(iii) of the Act or under a splitting order made under paragraph 90XT(1)(b) or 90YY(1)(b) of the Act—the specified percentage that is to apply to any splittable payment that becomes payable in respect of the interest. (5) The trustee is not required to provide information mentioned in this regulation to an applicant in any of the following circumstances: (a) if the application for information specifically requests the trustee to provide the information mentioned in paragraph (2)(ea) to the applicant, the trustee is not required to provide any other information mentioned in this regulation to the applicant; (b) the trustee is not required to provide the information mentioned in paragraph (3)(a) or subparagraph (3)(b)(i) to the applicant unless a record of that information is in the trustee’s possession, power or control. #### 68 Information about small superannuation accounts interests (Act s 90XZB, s 90YZR) (1) This regulation applies in relation to a superannuation interest of a member in an account within the meaning of the Small Superannuation Accounts Act 1995. (2) For subsections 90XZB(3) and 90YZR(3) of the Act, the information that must be provided to an applicant by the trustee of the plan is a statement setting out the amount of the account balance of the member’s account at the date when the application for information is received by the trustee. #### 68A Information about certain superannuation interests in relation to which an agreement or splitting order applies (Act s 90XZB, s 90YZR) (1) This regulation applies in relation to a superannuation interest of a member of an eligible superannuation plan if subregulation (2) or (3) applies to the interest. (2) This subregulation applies to a superannuation interest of a member of an eligible superannuation plan if: (a) the interest is identified in a superannuation agreement or flag lifting agreement; and (b) the agreement specifies, under subparagraph 90XJ(1)(c)(i) or 90YN(1)(c)(i) of the Act, an amount as a base amount or, under subparagraph 90XJ(1)(c)(ii) or 90YN(1)(c)(ii) of the Act, a method by which such a base amount can be calculated; and (c) the agreement has been served on the trustee of the plan in accordance with section 90XI or 90YM of the Act; and (d) the agreement does not relate to an earlier marriage or de facto relationship of the member spouse; and (e) the agreement has not been terminated or set aside. (3) This subregulation applies to a superannuation interest of a member of an eligible superannuation plan if: (a) a splitting order in relation to the interest has been made under paragraph 90XT(1)(a) or 90YY(1)(a) of the Act; and (b) the order does not relate to an earlier marriage or de facto relationship of the member spouse; and (c) the order has not been set aside. (4) For subsections 90XZB(3) and 90YZR(3) of the Act, if an application is made under section 90XZB or 90YZR of the Act to the trustee of the plan by a person (the applicant) who is entitled to be paid an amount whenever a splittable payment becomes payable in respect of the interest, the information about the interest that must be provided to the applicant by the trustee is the applicable commutation factor, at the date when the application for information is received by the trustee and at the next 2 anniversaries of that date, for converting any pension benefit payable in respect of the interest to a lump sum. #### 68B How and when trustee must provide information (1) Information about a superannuation interest that is provided by the trustee of an eligible superannuation plan to an eligible person under subsection 90XZB(3) or 90YZR(3) of the Act and this Division must be stated in a document that: (a) is addressed to the person; and (b) is given to the person within a reasonable time after the application for information is received by the trustee. > Note: Document is defined in section 2B of the Acts Interpretation Act 1901. See also sections 28A and 29 of that Act for ways of giving a document to a person. (2) A document stating information about a superannuation interest that is provided by the trustee to an eligible person under subsection 90XZB(3) or 90YZR(3) of the Act and this Division is evidence: (a) of the information stated in it; and (b) that the document was provided to the person to whom it is addressed. #### 69 Secondary government trustee not required to provide information (Act s 90XZB, s 90YZR) (1) Subject to subregulation (2), a secondary government trustee of an eligible superannuation plan is not required to provide any information to an applicant, under section 90XZB or 90YZR of the Act, about a superannuation interest of a member of the plan. (2) Subregulation (1) does not apply to a secondary government trustee of the scheme constituted by the Parliamentary Contributory Superannuation Act 1948. #### 70 Information to be provided by trustee following service of agreement or order (Act s 90XZB, s 90YZR) (1) This regulation applies to the trustee of an eligible superannuation plan, other than: (a) a regulated superannuation fund; or (b) an approved deposit fund; or (c) an RSA; or (d) an account within the meaning of the Small Superannuation Accounts Act 1995. (2) For subsections 90XZB(7) and 90YZR(7) of the Act, if the trustee is served with a copy of a superannuation agreement, flag lifting agreement or splitting order, that deals with a member spouse’s superannuation interest in the plan, the trustee must, as soon as practicable after the operative time for the payment split under the agreement or order, give to the non‑member spouse in relation to the superannuation interest a written notice stating the following information: (a) the contact details for the plan; (b) if the interest is not a percentage‑only interest: (i) the base amount (if any) allocated to the non‑member spouse under the agreement or order; and (ii) the method by which the base amount (if any) will be adjusted on an ongoing basis; and (iii) the percentage (if any) specified in the agreement or order that is to apply to all splittable payments in respect of the interest; (c) if the interest is a percentage‑only interest: (i) the percentage specified in the agreement or order; and (ii) if the payment split is under a superannuation agreement or flag lifting agreement, whether the percentage is to apply for the purposes of subparagraph 90XJ(1)(b)(i) or 90YN(1)(b)(i) (as the case may be) of the Act; and (iii) if the payment split is under a splitting order, whether the order is made under paragraph 90XT(1)(c) or 90YY(1)(c) (as the case may be) of the Act; (d) the circumstances in which the entitlement of the non‑member spouse will become payable; (e) details of any fee payable by the non‑member spouse under regulation 59, and arrangements for the payment of any such fee. #### 71 Information to be provided by trustee at end of financial year (1) This regulation applies in relation to a superannuation interest if: (a) the interest is in a superannuation fund that is not a regulated superannuation fund; and (b) the interest is not a percentage‑only interest; and (ba) the interest is subject to a payment split under subparagraph 90XJ(1)(c)(i) or (ii) or 90YN(1)(c)(i) or (ii) of the Act or under a splitting order made under paragraph 90XT(1)(a) or 90YY(1)(a) of the Act; and (c) the interest is in the growth phase during a particular financial year. (2) Unless the payment split is under a superannuation agreement, flag lifting agreement or splitting order in relation to which the non‑member spouse’s entitlement has been satisfied as required by Division 2.2, the trustee of the plan must give the following information to the non‑member spouse in relation to the superannuation interest for each financial year in which the interest is in the growth phase: (a) the value of the adjusted base amount applicable to the non‑member spouse at the end of the financial year; (b) the amount of the adjustment in the financial year; (c) the interest rate that applied, under Division 6.1A, to the superannuation interest for the financial year. (3) The trustee must give the information to the non‑member spouse not later than 6 months after the end of the relevant financial year. Penalty for subregulation (3): 1 penalty unit. #### 72 Notice to trustee by non‑member spouse (1) The non‑member spouse in relation to a superannuation interest that is subject to a payment split or payment flag must notify the trustee of the eligible superannuation plan in which the interest is held of the following matters: (a) the non‑member spouse’s full name; (b) the non‑member spouse’s postal address and, if this address changes, details of the changed postal address; (c) if the interest is subject to a payment split: (i) the non‑member spouse’s date of birth; and (ii) whether the non‑member spouse is a member of the plan and, if so, the non‑member spouse’s membership number, if known. (2) The notice must: (a) be in writing; and (b) be signed by the non‑member spouse; and (c) state the date when it is given. (3) The non‑member spouse must give the notice to the trustee: (a) as soon as practicable after the copy of the relevant superannuation agreement, flag lifting agreement or payment flag is served on the trustee, or the splitting order is made; and (b) if the notice is to give details of a changed postal address for the non‑member spouse—as soon as practicable after the change in address occurs. ## Part 8—Application, saving and transitional provisions #### 73 Purpose of Part 8 This Part makes application, saving and transitional arrangements in relation to amendments of these Regulations. #### 74 Amendments made by Family Law (Superannuation) Amendment (ABS) Regulation 2013 (1) This regulation applies to an adjustment period that begins or ends in the financial year beginning on 1 July 2013. (2) The interest rate for the adjustment period must be: (a) for subregulation 45D(3)—a rate determined by the Australian Government Actuary that is 2.5 percentage points above the amended percentage change; and (b) for subregulation 45D(4)—a rate calculated in accordance with a method determined by the Australian Government Actuary that provides for calculation of a rate by reference to a rate that is 2.5 percentage points above the amended percentage change; and (c) for subregulation 45D(6), when the adjustment period commences before 30 June 2013 and ends during the financial year beginning on 1 July 2013—a rate calculated in accordance with a method determined by the Australian Government Actuary that provides for calculation of a rate by reference to the followings rates: (i) a rate that is 2.5 percentage points above the percentage change in the original estimate of full‑time adult ordinary time earnings for all persons in Australia, as published by the Australian Bureau of Statistics, during the year ending with the February 2012 quarter; (ii) a rate that is 2.5 percentage points above the amended percentage change; and (d) for subregulation 45D(6), when the adjustment period commences before 30 June 2014 and ends during the financial year beginning on 1 July 2014—a rate calculated in accordance with a method determined by the Australian Government Actuary that provides for calculation of a rate by reference to the following rates: (i) a rate that is 2.5 percentage points above the amended percentage change; (ii) a rate that is 2.5 percentage points above the percentage change in the original estimate of full‑time adult ordinary time earnings for all persons in Australia, as published by the Australian Bureau of Statistics, during the year ending with the November 2013 quarter. (3) In this regulation, the amended percentage change is worked out using the formula:  where: > February OTE means the original estimate of full‑time adult ordinary time earnings for all persons in Australia published by the Australian Bureau of Statistics for the February 2012 quarter. > November OTE means the original estimate of full‑time adult ordinary time earnings for all persons in Australia published by the Australian Bureau of Statistics for the November 2012 quarter. #### 75 Amendments made by Family Law (Superannuation) Amendment (Unsplittable Interests) Regulations 2023 Paragraph 11(2)(c), as added by the Family Law (Superannuation) Amendment (Unsplittable Interests) Regulations 2023, applies in relation to a superannuation interest identified in an agreement or a court order under Part VIIIB or VIIIC of the Act, that: (a) provides for a payment split in respect of that interest; and (b) is made on or after the commencement of that instrument.