FAMILY LAW ACT 1975 - SECT 90XL Payment flag

FAMILY LAW ACT 1975 - SECT 90XL

  (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   90XM; or

  (b)   a flag lifting agreement is served on the trustee as mentioned in section   90XI 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   90XLA 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   90XN.