Example for paragraph (b): The trustee may be unable, after reasonable attempts, to identify an address or location of the non‑member spouse.
(4) If the trustee does not take an action under subregulation (1), the trustee must give to the non‑member spouse a written notice:
(a) confirming that the non‑member spouse has an interest in the fund; and
(b) informing the non‑member spouse of the relevant cooling‑off arrangements.
(5) The trustee must take an action under subregulation (1) or (4) within 6 months after the later of:
(a) the operative time; and
(b) the time when the trustee creates the non‑member interest.
Note: After the new interest in the fund is confirmed, it is no longer a non‑member spouse interest.
7A.03I Confirming that the non‑member spouse has an interest in the fund
(1) This regulation applies:
(a) if:
(i) a trustee receives a request under regulation 7A.03C within the time allowed under subregulation 7A.03F(1); and
(ii) paragraph 7A.03G(2)(b) does not apply to the request; or
(b) if:
(i) a trustee receives a request under regulation 7A.03C within the time allowed under subregulation 7A.03F(1); and
(ii) the trustee has, under paragraph 7A.03G(3)(a), retained the new interest in accordance with the request.
(2) The trustee must give to the non‑member spouse a written notice:
(a) confirming that the non‑member spouse has an interest in the fund; and
(b) informing the non‑member spouse of the relevant cooling‑off arrangements.
Note: After the new interest in the fund is confirmed, it is no longer a non‑member spouse interest.
7A.03J Rolling over or transferring the non‑member spouse’s interest
(1) This regulation applies if a trustee rolls over or transfers the withdrawal benefit from the non‑member spouse interest:
(a) to give effect to a request under regulation 7A.03D; or
(b) on the trustee’s initiative under subregulation 7A.03H(1).
(2) The trustee must roll over or transfer the amount as follows:
(a) if the rollover or transfer is to give effect to a request under regulation 7A.03D, it must be done within:
(i) 30 days after receiving the request; or
(ii) any longer period allowed by the Regulator;
(b) if the rollover or transfer is to be done on the trustee’s initiative under paragraph 7A.03H(1)(a), it must be done within 30 days after the trustee receives the nomination from the non‑member spouse under subregulation 7A.03H(2);
(c) if the rollover or transfer is to be done on the trustee’s initiative under paragraph 7A.03H(1)(b), it must be done within 30 days after the end of the 28‑day period mentioned in subregulation 7A.03H(2).
(3) The trustee must give a notice to the non‑member spouse, within 28 days after the amount is rolled over or transferred, stating:
(a) that the benefits have been rolled over or transferred; and
(b) if the rollover or transfer was done on the trustee’s initiative under paragraph 7A.03H(1)(b)—the name and contact details of the fund to which the amount was rolled over or transferred; and
(c) the amount that was rolled over or transferred.
7A.03K Paying a lump sum
(1) This regulation applies if a trustee pays to a non‑member spouse, as a lump sum, the withdrawal benefit from the non‑member spouse interest to give effect to a request under regulation 7A.03E.
(2) The trustee must pay the lump sum within:
(a) 30 days after receiving the request under regulation 7A.03E; or
(b) any longer period allowed by the Regulator.
(3) The trustee must give to the non‑member spouse, within 28 days after the lump sum is paid, a written notice stating:
(a) that the lump sum has been paid; and
(b) the amount that was paid.
Division 7A.2—Options available for certain superannuation interests
7A.04 Application of Division 7A.2
(1) This Division applies in relation to a superannuation interest (the original interest) in a regulated superannuation fund, or an approved deposit fund, if:
(a) the original interest is subject to a payment split; and
(b) either:
(i) the original interest is an accumulation interest that is in the growth phase; or
(ii) an allocated pension, market linked pension or account‑based pension is being paid in respect of the original interest.
(2) This Division does not apply to an accumulation interest:
(a) if:
(i) the interest is a partially vested accumulation interest; and
(ii) the transferable benefits in relation to the accumulation interest would be greater than the withdrawal benefit in relation to the member spouse; or
(b) if the interest is determined by reference to a traditional life insurance policy.
(3) This Division does not apply to an original interest if the trustee has created a non‑member spouse interest under regulation 7A.03B.
(4) In this regulation:
partially vested accumulation interest has the meaning given by section 10 of the Family Law (Superannuation) Regulations 2025.
7A.05 Request for new interest
The non‑member spouse may request the trustee to create a new interest for the non‑member spouse in the regulated superannuation fund or approved deposit fund in which the original interest is held.
7A.06 Request for transfer of benefits
(1) The non‑member spouse may request the trustee to roll over or transfer the transferable benefits to another regulated superannuation fund or approved deposit fund, or to an EPSSS or RSA, specified in the request, to be held for the benefit of the non‑member spouse.
(2) If the original interest is in a self managed superannuation fund, the non‑member spouse, or the member spouse, may request the trustee to roll over or transfer the transferable benefits to another regulated superannuation fund or approved deposit fund, or to an EPSSS or RSA, specified in the request, to be held for the benefit of the non‑member spouse.
7A.07 Request for lump sum payment
(1) This regulation applies:
(a) if a non‑member spouse has satisfied a relevant condition of release at the operative time for the payment split; or
(b) if an allocated pension, market linked pension or account‑based pension is being paid in respect of the original interest; or
(c) if the non‑member spouse’s interest derives from an original interest that comprises only unrestricted non‑preserved benefits.
(2) The non‑member spouse may request the trustee to pay to the non‑member spouse, as a lump sum, the amount to which the non‑member spouse is entitled under the payment split.
7A.08 Requirements for requests
(1) A request by a person under this Division must be made:
(a) before the end of 28 days after the trustee gives a payment split notice to the person; or
(b) if the trustee allows a longer period, before the end of the longer period allowed.
(2) The request must be made by written notice given to the trustee.
(3) The notice must:
(a) be signed by the person making the request; and
(b) state the date when it is given to the trustee; and
(c) for a request by the non‑member spouse, include his or her name, date of birth and postal address; and
(d) for a request by the member spouse, include a written nomination by the non‑member spouse of the regulated superannuation fund, approved deposit fund, EPSSS or RSA specified in the request.
(4) The trustee may allow the request to be withdrawn.
7A.09 Giving effect to request
(1) This regulation applies if a trustee receives a request under this Division within the time allowed under regulation 7A.08.
(2) The trustee must give effect to the request unless:
(a) the trustee has received an earlier request under this Division in respect of the same interest and the earlier request has not been withdrawn; or
(b) for a request under regulation 7A.05:
(i) the regulated superannuation fund in which the non‑member spouse interest is held has no more than 6 members; or
(ii) the governing rules of the regulated superannuation fund or approved deposit fund in which the original interest is held do not allow a new interest to be created for the non‑member spouse in the fund; or
(c) for a request under regulation 7A.06—the regulated superannuation fund, approved deposit fund, EPSSS or RSA specified in the request does not accept the rollover or transfer of benefits for the non‑member spouse.
(3) If subparagraph (2)(b)(i) applies in relation to a request, the trustee must:
(a) create the new interest in accordance with the request; or
(b) roll over or transfer the transferable benefits to another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non‑member spouse; or
(c) if there has been no such nomination by the non‑member spouse—consider whether it would be in the best interests of the non‑member spouse to pay the amount of the transferable benefits to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
(3A) If subparagraph (2)(b)(ii), or paragraph (2)(c), applies in relation to a request, the trustee must:
(a) roll over or transfer the transferable benefits to another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non‑member spouse; or
(b) if there has been no such nomination by the non‑member spouse—consider whether it would be in the best interests of the non‑member spouse to pay the amount of the transferable benefits to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
7A.10 Trustee options if no request received
(1) If the trustee does not receive a request under this Division within the time allowed under regulation 7A.08, the trustee may:
(a) create a new interest for the non‑member spouse in the regulated superannuation fund or approved deposit fund in which the original interest is held; or
(b) subject to subregulation (2), roll over or transfer the transferable benefits to another regulated superannuation fund or approved deposit fund, or to an EPSSS or an RSA, nominated by the non‑member spouse (subject to the governing rules of the other regulated superannuation fund, approved deposit fund or EPSSS or the terms and conditions of the RSA), to be held for the benefit of the non‑member spouse; or
(c) if the trustee does not, within the 28‑day period specified in paragraph (2)(a), receive from the non‑member spouse a written notice nominating a regulated superannuation fund, approved deposit fund, EPSSS or RSA to which the transferable benefits may be rolled over or transferred, consider whether it would be in the best interests of the non‑member spouse to pay the amount of the transferable benefits to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
(2) Subject to subregulation (4), before rolling over or transferring the transferable benefits to a regulated superannuation fund, approved deposit fund, EPSSS or RSA under paragraph (1)(b), the trustee must give to the non‑member spouse a written notice stating that:
(a) the non‑member spouse has 28 days from the date of the notice in which to nominate, by written notice to the trustee, a regulated superannuation fund, approved deposit fund, EPSSS or RSA to which the transferable benefits may be rolled over or transferred; and
(b) if the non‑member spouse does not, within that 28‑day period, nominate a regulated superannuation fund, approved deposit fund, EPSSS or RSA for that purpose, the trustee will consider whether it would be in the best interests of the non‑member spouse to pay the transferable benefits to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
(4) If a trustee:
(a) has made reasonable attempts to obtain sufficient information about a non‑member spouse to be able to give a payment split notice; and
(b) has been unable to obtain sufficient information about the non‑member spouse;
the trustee is permitted to act under subregulation (1) as if the subregulation did not require the giving of the payment split notice or the notice under subregulation (2).
Example for paragraph (a): The trustee may be unable, after reasonable attempts, to identify an address or location of the non‑member spouse.
(5) If a trustee:
(a) proposes to give a non‑member spouse a notice under subregulation (2); and
(b) has made reasonable attempts to obtain sufficient information about the non‑member spouse to be able to give the notice; and
(c) has been unable to obtain sufficient information about the non‑member spouse;
the trustee is not required to give the notice, and is permitted to act under paragraphs (1)(b) and (c) as if those paragraphs did not require the giving of the notice.
Example for paragraph (b): The trustee may be unable, after reasonable attempts, to identify an address or location of the non‑member spouse.
7A.11 Creating a new interest
(1) This regulation applies if the trustee creates a new interest for the non‑member spouse in the regulated superannuation fund or approved deposit fund in which the original interest is held:
(a) to give effect to a request under regulation 7A.05; or
(b) on the trustee’s initiative under paragraph 7A.03H(1)(aa) or 7A.10(1)(a).
(2) Subject to subregulations (3) and (4), the value of the benefits that the non‑member spouse has in the new interest must be:
(a) if the payment split is a base amount payment split and an adjusted base amount applies to the non‑member spouse when the new interest is created—the adjusted base amount less the amount of any fees payable by the non‑member spouse in respect of the payment split; or
(b) if the payment split is a base amount payment split and an adjusted base amount does not apply to the non‑member spouse when the new interest is created—the base amount allocated to the non‑member spouse, within the meaning of section 72 of the Family Law (Superannuation) Regulations 2025, less the amount of any fees payable by the non‑member spouse in respect of the payment split; or
(c) if the payment split is a percentage payment split:
(i) for an entitlement, in respect of an accumulation interest in the growth phase that is not a partially vested accumulation interest, to which subparagraph (ii) does not apply—the amount in relation to the interest at the time when the new interest is created, determined in the way in which a court would determine an amount in accordance with section 51 and subsection 53(2) of the Family Law (Superannuation) Regulations 2025, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse in respect of the payment split; or
(ii) for an entitlement in respect of an interest in a self‑managed superannuation fund—the amount in relation to the interest at the time when the new interest is created, determined by a method that a court might use if the court were acting under paragraph 90XT(2)(b) or 90YY(2)(b) (as the case may be) of the Family Law Act 1975, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse in respect of the payment split; or
(iii) for an entitlement in respect of any other interest—the amount in relation to the interest at the time when the new interest is created, determined in the way in which a court would determine an amount in accordance with the relevant method in Part 6 of the Family Law (Superannuation) Regulations 2025, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse in respect of the payment split.
(3) If the payment split is a base amount payment split, and a splittable payment becomes payable in respect of the member spouse’s interest before the new interest is created, the value of the benefits that the non‑member spouse has in the new interest must be the amount applying under subregulation (2) less the amount the non‑member spouse is entitled to be paid in respect of the splittable payment.
(4) The value of the benefits that the non‑member spouse has in the new interest must not be more than the value of the withdrawal benefit in relation to the member spouse and the original interest immediately before the new interest is created.
(5) The value of the benefits that the member spouse has in his or her interest must be reduced by the sum of:
(a) the value of the benefits that the non‑member spouse has in the new interest; and
(b) the amount of any fees payable by the non‑member spouse in respect of the payment split.
(6) In creating the new interest:
(a) a proportion must be taken from the unrestricted non‑preserved benefits, the restricted non‑preserved benefits and the preserved benefits of the member spouse; and
(b) the proportion taken from each category of benefits must be the same as the category bears to the member spouse’s interest immediately before the new interest was created.
(7) The benefits held in the new interest are unrestricted non‑preserved benefits, restricted non‑preserved benefits or preserved benefits in accordance with the character that they had in the member spouse’s interest.
(8) A new interest created to give effect to a request under regulation 7A.05 is taken to be created on the day when the trustee receives the request in accordance with regulation 7A.08.
(9) A new interest created on the trustee’s initiative under paragraph 7A.03H(1)(aa) or 7A.10(1)(a) is taken to be created on the twenty‑ninth day after the date when the payment split notice in relation to the payment split was given by the trustee.
(10) The trustee must give to the member spouse and the non‑member spouse, within 28 days after the new interest is created, a written notice stating:
(a) that the new interest has been created; and
(b) the amount allocated to the non‑member spouse in the new interest; and
(c) if the payment split is a base amount payment split—the amount of any adjustment that has been made to the base amount since the operative time.
7A.12 Rolling over or transferring transferable benefits