Commonwealth Consolidated Regulations

SUPERANNUATION INDUSTRY (SUPERVISION) REGULATIONS 1994 - REG 7A.16

  (1)   Subject to regulation   7A.17, this regulation applies if:

  (a)   the non - member spouse has not satisfied a relevant condition of release at the time of the splittable payment; and

  (b)   the splittable payment does not derive from an allocated pension, market linked pension or account - based pension.

  (2)   The trustee of the regulated superannuation fund or approved deposit fund in which the original interest is held must:

  (a)   allocate the amount to an interest that the trustee creates for the non - member spouse in the regulated superannuation fund or approved deposit fund; or

  (b)   roll over or transfer the amount to another regulated superannuation fund, an RSA, an approved deposit fund or an EPSSS, to be held for the benefit of the non - member spouse.

  (2A)   The trustee must preserve the amount mentioned in subregulation   (2).

  (3)   If the non - member spouse's entitlement under the payment split is to be paid as a lump sum, the trustee must allocate, roll over or transfer the lump sum within:

  (a)   30 days after the splittable payment becomes payable; or

  (b)   any longer period allowed by the Regulator.

  (4)   If the non - member spouse's entitlement derives from a pension being paid to the member spouse (other than a pension to which regulation   7A.17 applies, an allocated pension, market linked pension or account - based pension), the trustee must allocate, roll over or transfer the amounts to which the non - member spouse is entitled:

  (a)   if the governing rules of the fund provide for the frequency with which pension payments are to be made to the member spouse--in accordance with those rules; or

  (b)   in any other case--at least annually.

  (5)   Subject to subregulation   (6), the amount must not be allocated, rolled over or transferred unless the trustee of the transferor fund:

  (a)   has received, from the non - member spouse, consent to the allocation, rollover or transfer; or

  (b)   in the case of a rollover or transfer--believes, on reasonable grounds, that:

  (i)   the trustee of the receiving regulated superannuation fund, approved deposit fund or EPSSS; or

  (ii)   the receiving RSA provider;

    has received from the non - member spouse consent to the rollover or transfer.

  (6)   If the trustee of the transferor fund believes, on reasonable grounds and after making reasonable inquiries, that the non - member spouse has not given a consent mentioned in subregulation   (5), the trustee must:

  (a)   consider whether it would be in the best interests of the non - member spouse to pay the amount to the Commissioner under section   22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999 ; and

  (b)   if the trustee does not pay the amount to the Commissioner under section   22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999 --allocate the amount to an interest that the trustee creates for the non - member spouse in the regulated superannuation fund or approved deposit fund.

  (7)   The consent of the member spouse to a rollover or transfer under this regulation is not required.

  (8)   In subregulation   (5):

"consent" means:

  (a)   written consent; or

  (b)   any other form of consent determined by the Regulator as sufficient in the circumstances.