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FAMILY LAW ACT 1975 - SECT 90ML

Payment flag

             (1)  This section applies to a superannuation interest if:

                     (a)  the interest is identified in a superannuation agreement; and

                     (b)  the agreement provides that the interest is to be subject to a payment flag under this Part; and

                     (c)  the agreement is in force at the operative time; and

                     (d)  the interest is not an unflaggable interest.

             (2)  A payment flag starts to operate on the superannuation interest at the operative time and continues to operate until either:

                     (a)  a court terminates the operation of the payment flag by an order mentioned in section 90MM; or

                     (b)  a flag lifting agreement is served on the trustee as mentioned in section 90MI in respect of the superannuation interest.

             (3)  If a payment flag ceases to operate because of paragraph (2)(b), the cessation is not affected by a later termination of the flag lifting agreement.

             (4)  While a payment flag is operating on a superannuation interest, the trustee must not make any splittable payment to any person in respect of the interest.

Penalty:  50 penalty units.

Note:          The penalty for a body corporate is 250 penalty units. See subsection 4B(3) of the Crimes Act 1914 .

          (4A)  Subsection (4) does not apply if the splittable payment is made in circumstances in which section 90MLA applies.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (4A) (see subsection 13.3(3) of the Criminal Code ).

             (5)  If a splittable payment becomes payable in respect of a superannuation interest while a payment flag is operating, the trustee must, within 14 days after it became payable, give written notice to the member spouse and the non-member spouse.

Penalty:  50 penalty units.

Note:          The penalty for a body corporate is 250 penalty units. See subsection 4B(3) of the Crimes Act 1914 .

             (6)  Subsection (5) does not apply if the trustee has previously given a notice under that subsection, for an earlier splittable payment, in respect of the payment flag.

             (7)  If either spouse dies while a payment flag is operating:

                     (a)  the payment flag nevertheless continues to operate; and

                     (b)  the legal personal representative of the deceased spouse has all the rights the deceased spouse would have had in respect of the payment flag.

Note:          The rights of the legal personal representative under paragraph (b) include the right to enter into a flag lifting agreement under section 90MN.



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