44Determining the value of certain superannuation interests of member spouses

44 Determining the value of certain superannuation interests of member spouses

(1) For the purposes of paragraph 90XT(2)(a) or 90YY(2)(a) of the Act, the court must determine an amount in relation to a superannuation interest of the member spouse: (a) if the interest is in the growth phase at the relevant date—under Division 1 of Part 6 of this instrument; and (b) if the interest is in the payment phase at the relevant date—under Division 2 of Part 6 of this instrument. (2) However, subsection (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: The determination mentioned in subsection (1) is taken to be the value of the superannuation interest of the member spouse (see subsection 90XT(2A) or 90YY(3) of the Act). The determination must be made before the court makes an order under subsection 90XT(1) or 90YY(1) of the Act (about splitting orders) for the benefit of the non‑member spouse in relation to the superannuation interest.

Note 2: For a determination of the value of a small superannuation accounts interest, see section 45.

Note 3: For a superannuation interest mentioned in paragraph (2)(b) or (c), the court will not determine the value of the member spouse’s superannuation interest under this instrument. Instead, the court will do so by such method as the court considers appropriate (see paragraph 90XT(2)(b) or 90YY(2)(b) of the Act).