Commonwealth Consolidated Regulations Commonwealth Consolidated Regulations(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).