Part 5Family Law Act provisions

Part 5—Family Law Act provisions 64—Purpose of this Part Pursuant to section 30(2) of the Act, 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. 65—Interpretation In this Part, unless the contrary intention appears— Commonwealth regulations means the Family Law (Superannuation) Regulations 2001 (No. 303 as amended) of the Commonwealth; eligible person, in relation to a superannuation interest of a member, 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; member includes a spouse member; 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 split has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth; 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. 66—Non‑member spouse entitlement (1) The Board must, on service of a splitting instrument, create an interest for the non‑member spouse named in the instrument in accordance with the provisions of the instrument, with effect from the operative time. (2) The value of the non‑member spouse's interest will be determined by reference to the provisions of the instrument but in any event may not exceed the value of the member spouse's interest. 67—Payment of lump sum (1) The interest of a non‑member spouse under regulation 66 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 retained to the credit of the non‑member spouse in an account in the name of the non‑member spouse in the Fund; or (c) be rolled over or transferred to some other superannuation fund or scheme approved by the Board. (2) The Board must, if necessary, establish a member's contribution account so as to provide for the requirements of subregulation (1)(b). (3) The Board must ensure that the money constituting the interest of the non‑member spouse continues to be invested in the class of investments, or the combination of classes of investments, that the money was invested in before the creation of the interest unless or until the non‑member spouse makes a nomination under section 14(1) of the Act for his or her accounts to be invested in a different class of investments or combination of classes of investments. (4) The Board must take the action required under subregulation (1) within 28 days after receiving the relevant election. (5) 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, the Board must, subject to this regulation, transfer the interest to the credit of the non‑member spouse under subregulation (1)(b). (6) A notice under subregulation (5) must— (a) be in writing; and (b) notify the non‑member spouse that the interest may be retained in the Triple S scheme; and (c) advise the non‑member spouse of— (i) his or her option to make an election and the consequences of a failure to do so within 28 days; and (ii) the value of his or her interest; and (iii) the basis of any adjustments that have been, or will be, applied to the interest. (7) If the interest of a non‑member spouse is transferred to the credit of the non‑member spouse in the Triple S scheme because an election has not been made, the Board must, within 14 days of the interest being rolled over— (a) advise the non‑member spouse that his or her interest has been retained in the Triple S scheme; and (b) provide the non‑member spouse with a membership identification number, a copy of the most recent annual report prepared in respect of the Triple S scheme and any other information that, according to a determination of the Board, may be of assistance to the non‑member spouse. 68—Effect on member's entitlement (1) Despite the other provisions of the Act and these regulations, if a payment split is payable with respect to the superannuation interest of a member, there is a corresponding reduction in the entitlement of the member under the Act or these regulations. (2) A reduction in the entitlement of a member will be given effect on the basis that the member's contribution account, rollover account, and co‑contribution account (insofar as they exist) will be subject to a charge that takes effect by reducing the balance of each of those accounts 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 (subject to any relevant method or factor adopted or applied by the regulations and to the extent necessary to take into account the full value of the entitlement of the non‑member spouse). (3) A reduction in the entitlement of a member 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) If 2 or more reductions must be made with respect to an entitlement of a member because 2 or more splitting instruments have been served on the Board, the Board may determine to apply the reductions separately, or in aggregate. (5) If a member has received a draw down benefit under regulation 53 (as in force immediately before it was revoked by the Southern State Superannuation (Fund Selection and Other Matters) Amendment Regulations 2022), the superannuation interest of the member will be taken to include the balance of any investment made by the Board on behalf of the member under subregulation (6) of that regulation. 69—Lump sum not payable to spouse on death of member if split has occurred If a member 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 member's superannuation interest under the Act or these regulations (or any proportion of such an interest), the spouse is not entitled to a benefit under the Act or these regulations in respect of the deceased member (except in accordance with the instrument) and will not be considered to be a spouse of the deceased member for the purposes of regulation 74 (if relevant). 70—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. 71—Provision of information 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, as at a particular date specified in the application. 72—Payment from contribution account in name of non‑member spouse If the interest of a spouse (or former spouse) is paid into a contribution account under regulation 67(1)(b), or is rolled over for payment into an account under the Act or these regulations or under the provisions of another Act or of regulations that correspond to this Part, the amount paid into the account will be taken to be a rollover component that may be paid out in accordance with regulation 55(7). 73—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 under subregulation (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 the Act or these regulations; or (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 the Act or these regulations.