Part 5BFamily Law Act provisions

Part 5B—Family Law Act provisions 38F—Purpose of this Part The purpose of this Part is to facilitate the division under the Family Law Act 1975 of the Commonwealth of superannuation interests between spouses who have separated. 38G—Interpretation In this Part, unless the contrary intention appears— age of retirement has the meaning assigned by the regulations; Commonwealth regulations means the Family Law (Superannuation) Regulations 2001 (No. 303 as amended) of the Commonwealth; defined benefit interest means— (a) a benefit or superannuation interest that is a function of salary and membership or service; or (b) an interest brought within the ambit of this definition by the regulations; eligible person, in relation to a superannuation interest of a contributor, has the same meaning as in section 90MZB of the Family Law Act 1975 of the Commonwealth; flag lifting agreement has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth; growth phase has the same meaning as in the Commonwealth regulations; member spouse has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth; non-member spouse has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth; operative time has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth; payment phase has the same meaning as in the Commonwealth regulations; payment split has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth; relevant date has the same meaning as in the Commonwealth regulations; SIS Act means the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; Southern State Superannuation Fund means the fund of that name established under the Southern State Superannuation Act 1994 and continued in existence by the Southern State Superannuation Act 2009; splitting instrument means— (a) a superannuation agreement; or (b) a flag lifting agreement that provides for a payment split; or (c) a splitting order; splitting order has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth; superannuation agreement has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth. 38H—Value of superannuation interest (1) For the purposes of this Part (but subject to subsection (2)), the value of any superannuation interest will be determined in accordance with Part 5 of the Commonwealth regulations (insofar as those regulations provide a method for determining that value), subject to any modification prescribed by regulation under this Act. (2) An approval of the Commonwealth Minister under regulation 38 or 43A of the Commonwealth regulations that relates to a superannuation interest under this Act will have effect for the purposes of this Part. 38I—Board to comply with Commonwealth requirements The Board must comply with the requirements imposed on the Board under Part VIIIB of the Family Law Act 1975 of the Commonwealth. 38J—Reduction in contributor's entitlement (1) Despite the other provisions of this Act, if a payment split is payable with respect to the superannuation interest of a contributor, there is a corresponding reduction in the entitlement of the contributor under this Act. (2) A reduction in the entitlement of a contributor will be given effect as follows: (a) the contributor's contribution account will be subject to a charge that takes effect by reducing the balance of any such account at the operative time (insofar as a balance exists) by a percentage equal to the percentage that the non-member spouse's share in the relevant superannuation interest bears to the total value of the contributor's accrued superannuation benefit at the operative time (and any relevant method or factor that applies under section 38H will be applied); and (b) except with respect to a pension in the payment phase, any entitlement in respect of a pension in the growth phase and any employer-funded component of a superannuation benefit payable to the contributor after the creation of the relevant interest for the benefit of the non-member spouse will, as from the operative date, be subject to a reduction that takes effect by reducing— (i) the number of contribution points; and (ii) factor "M" in a formula under this Act (insofar as this is relevant to a determination of an employer-funded component in the particular case), to the extent necessary to take into account, to its full extent, the employer-funded component of the value of the non-member spouse's interest (and any relevant method or factor that applies under section 38H will be applied); and (c) any pension in the payment phase will, depending on the terms of the splitting instrument, be reduced by— (i) the value of the non-member spouse's share in the relevant superannuation interest; or (ii) the percentage of the relevant superannuation interest to be shared with the non-member spouse. (3) A reduction in the entitlement of a contributor will not extend to any superannuation benefit that is not a splittable payment under Part VIIIB of the Family Law Act 1975 of the Commonwealth. (4) A reduction in contribution points in connection with the operation of this Part does not affect the aggregate of contribution points that would apply under section 18 but for the operation of subsection (2). (5) If 2 or more reductions must be made with respect to an entitlement of a contributor because 2 or more splitting instruments have been served on the Board, the Board may determine to apply the reductions separately, or in aggregate. 38K—Benefit not payable to spouse on death of contributor if split has occurred If a contributor dies and is survived by a spouse who— (a) has received, is receiving or is entitled to receive a benefit under a splitting instrument; or (b) is, under the terms of a splitting instrument, not entitled to any amount arising out of the contributor's superannuation interest under this Act (or any proportion of such an interest), the spouse is not entitled to a benefit under this Act in respect of the deceased contributor (except in accordance with the instrument) and will not be considered to be a spouse of the deceased contributor for the purposes of section 41 (if relevant). 38P—Accrued benefit multiple (1) For the purposes of the Commonwealth regulations, the accrued benefit multiple in respect of a superannuation interest payable as a pension is the percentage of annual salary that the member spouse would be entitled to receive as a pension at the prescribed date assuming that the member spouse retired on that day at or over the age of retirement (as the case requires) with the member spouse's accrued contribution points and contribution period as at that day. (2) For the purposes of the Commonwealth regulations, the accrued benefit multiple in respect of a superannuation interest payable as a lump sum that is a defined benefit interest is the multiple of annual salary that the member spouse would be entitled to receive at the prescribed date assuming that the member spouse retired on that day at or over the age of retirement (as the case requires) and was taking his or her entitlement under the Act on that day. (3) In addition to any other information that may be provided by the Board in connection with this Part, the Board may, on application, provide to an eligible person a statement of the value of a superannuation interest of a member spouse who is an old scheme contributor, as at a particular date specified in the application. (4) In this section— prescribed date is the date that is relevant to the determination of an accrued benefit multiple in the particular circumstances. 38Q—Non-member spouse's entitlement (1) The Board must, on service of a splitting instrument, create an interest for the non-member spouse named in the instrument, with effect from the operative time. (2) The form of the non-member spouse's interest will be determined on the basis of whether the superannuation interest is in the growth phase or the payment phase, by the nature of the member spouse's superannuation interest, and by reference to the provisions of the instrument. 38R—Non-member spouse's entitlement where pension is in growth phase (1) If the Board is served with a splitting instrument in respect of a pension that is in the growth phase, the non-member spouse is not entitled to receive his or her entitlement in the form of a pension commencing at the termination of the member spouse's period of service but is, instead, entitled to have a lump sum determined under this section paid on his or her behalf in accordance with this Part. (2) The lump sum to which the non-member spouse is entitled, as at the operative time, will be determined— (a) where the splitting instrument specifies a percentage of the member spouse's superannuation interest for the percentage of the split—by applying that percentage split to the member's superannuation interest based on the relevant accrued benefit multiple and by applying any relevant method or factor that applies under section 38H; (b) subject to subsection (3), where the splitting instrument specifies a lump sum for the purposes of the split—by adopting that lump sum. (3) The value of a lump sum payable to a non-member spouse under this section must not exceed the value of the member spouse's interest. 38S—Non-member spouse's entitlement where pension is in payment phase (1) If the Board is served with a splitting instrument in respect of a pension that is in the payment phase, the Board must divide the pension between the member spouse and non-member spouse in accordance with the instrument, with effect from the operative time. (2) The non-member spouse may— (a) — (i) in accordance with the terms of the splitting instrument; or (ii) by notice in writing given to the Board within the prescribed period, elect to have the whole of his or her share of the superannuation interest determined under subsection (1) converted to (and taken as) a separate pension entitlement (to be referred to as an associate pension for the purposes of this Act) for the lifetime of the non-member spouse; or (b) by notice in writing given to the Board within the prescribed period, elect to have the whole of his or her share of the superannuation interest determined under subsection (1) commuted to a lump sum. (3) The following provisions will apply with respect to an associate pension: (a) the amount of the pension will be determined by applying the methods and factors prescribed by the regulations; (b) the non-member spouse will not be taken to be a contributor on account of the entitlement to the pension; (c) the pension will be indexed; (d) no derivative, reversionary or other rights will arise or continue on account of the entitlement to the pension after the death of the non-member spouse. (4) A lump sum under subsection (2)(b) will be determined by applying the methods and factors prescribed by the regulations. (5) If the non-member spouse is taking his or her entitlement as a pension (other than an associate pension) and there is a reduction in the member spouse's pension under this Act, there will be a corresponding reduction in the non-member spouse's pension. (6) If the non-member spouse is taking his or her entitlement as a pension (other than an associate pension) and the payment of the member spouse's pension ceases, there will be a corresponding cessation in the payment of the non-member spouse's pension. (7) If the non-member spouse dies while entitled to, or in receipt of, a pension under this section (other than an associate pension), the non-member spouse's legal representative may, by notice in writing given to the Board within the prescribed period, elect to have the pension commuted to a lump sum. (8) A lump sum under subsection (7) will be determined by applying the methods and factors prescribed by the regulations to the non-member spouse's entitlement. (9) In this section— legal representative, in relation to a deceased non-member spouse, means a person— (a) holding office as executor of the will of the deceased non-member spouse where probate of the will has been granted or resealed in South Australia or any other State or a Territory; or (b) holding office in South Australia or any other State or a Territory as administrator of the estate of the deceased non-member spouse. 38T—Payment of non-member spouse's entitlement (1) If the interest of a non-member spouse created under this Part after service of a splitting instrument or after the commutation of a pension payable to the non-member spouse is a lump sum, the interest will, according to the election of the non-member spouse— (a) be paid out to the extent (if any) that payment can be made in accordance with the SIS Act; or (b) be rolled over to the credit of the non-member spouse in an account (which may need to be established) in the name of the non-member spouse in the Southern State Superannuation Fund; or (c) be rolled over or transferred to some other superannuation fund or scheme approved by the Board. (2) The Board must take the action required under subsection (1) within 28 days after receiving the relevant election. (3) However, if an election is not made by the non-member spouse before the end of 28 days after the Board gives notice to the non-member spouse in the manner contemplated by the regulations, the Board must, subject to the regulations, roll over the interest to the credit of the non-member spouse under subsection (1)(b). (4) If the interest of a non-member spouse created under this Part after service of a splitting instrument is a pension (and the non-member spouse has not directed that the pension be commuted to a lump sum), the Board must split the relevant pension within the prescribed period after receipt of the splitting instrument (with effect from the relevant date), and begin to make the payments in accordance with the regulations (subject to any cessation of the payment of the member spouse's pension). 38U—Fees (1) The Board may fix fees in respect of matters in relation to which fees may be charged under regulation 59 of the Commonwealth regulations. (2) Any fee fixed under subsection (1) that is payable by a member spouse or a non-member spouse and has not been paid within 1 month of the amount becoming payable may be deducted by the Board— (a) if the outstanding fee is payable by a member spouse— (i) from the member spouse's contribution account; or (ii) from any benefit payable to the member spouse under this Act; (b) if the outstanding fee is payable by a non-member spouse— (i) from any interest that is to be rolled over or transferred to a fund for the benefit of the non-member spouse; or (ii) from any other benefit payable to the non-member spouse under this Act.