New South Wales Consolidated Acts

SUPERANNUATION LEGISLATION AMENDMENT (FAMILY LAW) ACT 2003 - SCHEDULE 5

SCHEDULE 5 – Amendment of Parliamentary Contributory Superannuation Act 1971 No 53

(Section 3)

[1] Section 3 Definitions

Insert in alphabetical order in section 3 (1):

"family law superannuation legislation" has the same meaning as it has in Part 4A.

[2] Section 3 (3)

Insert after section 3 (2):

(3) Notes included in this Act do not form part of this Act.

[3] Section 6 Payments into and out of the Fund

Insert after section 6 (2):

(3) There is to be paid from the Fund fees payable to the trustees arising under the family law superannuation legislation or Part 4A, including administration costs arising under the family law superannuation legislation or Part 4A.

[4] Part 4A

Insert after Part 4:

Part 4A - Provisions relating to family law superannuation legislation

29A Definitions In this Part:
"complying superannuation fund" means:

(a) a regulated superannuation fund under the Superannuation Industry (Supervision) Act 1993 of the Commonwealth, or

(b) the First State Superannuation Fund.

"family law superannuation entitlement" has the same meaning as it has in section 29C (2) (a).
"family law superannuation legislation" means Part VIIIB of the Family Law Act 1975 of the Commonwealth and the Family Law (Superannuation) Regulations 2001 of the Commonwealth.
"family law superannuation payment" means an amount payable under this Part to or in respect of a non-member spouse.
"First State Superannuation Fund" means the First State Superannuation Fund established under the First State Superannuation Act 1992 .
"flag lifting agreement" has the same meaning as it has in Part VIIIB of the Family Law Act 1975 of the Commonwealth.
"FTC" means the FSS Trustee Corporation established under the Superannuation Administration Act 1996 .
"member spouse", in relation to a superannuation interest under this Act, means the spouse who has the superannuation interest.
"non-member spouse", in relation to a superannuation interest under this Act, means the spouse who is not the member spouse in relation to that interest.
"payment split" has the same meaning as it has in Part VIIIB of the Family Law Act 1975 of the Commonwealth.
"RSA" means a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997 of the Commonwealth.
"splitting order" has the same meaning as it has in Part VIIIB of the Family Law Act 1975 of the Commonwealth.
"spouse" of a person means a person who is or was married to that person.
"superannuation agreement" has the same meaning as it has in Part VIIIB of the Family Law Act 1975 of the Commonwealth.
"superannuation interest" means an interest that a member or former member or other person has as a member or beneficiary of the superannuation scheme under this Act.

29B Payment of benefits where superannuation interests affected by flagging order or payment split Nothing in this Act:

(a) requires the trustees to pay a benefit or to make any other payment under this Act, to the extent that any such payment would contravene provisions of the family law superannuation legislation or any order or agreement made under that legislation, or

(b) prevents the trustees from paying or reducing a benefit or making any other payment, to the extent that the payment or reduction is required to be made, or results from a requirement, under the family law superannuation legislation or any order or agreement made under that legislation.

29C Payment splits

(1) The object of this section is to facilitate arrangements for payment splits under the family law superannuation legislation and to provide for family law superannuation payments to or in respect of non-member spouses for the purposes of satisfying the requirements of Division 2.2 of Part 2 of the Family Law (Superannuation) Regulations 2001 of the Commonwealth.

Note: The effect of satisfying those requirements is that payments to the member spouse of a benefit under this Act will no longer be liable to be split for the purposes of the family law superannuation legislation.

(2) A non-member spouse has a family law superannuation entitlement to which this section applies if:

(a) the non-member spouse has an entitlement, that is operative, to be paid an amount under a superannuation agreement, flag lifting agreement or splitting order in respect of the superannuation interest of a member spouse (a "family law superannuation entitlement"), and

(b) the member spouse is, or was the spouse of, a person who has or had a period of service of not less than the period that entitles a member, who is otherwise eligible under this Act, to a pension, and

(c) the family law superannuation entitlement has not been paid to the non-member spouse by the member spouse, or waived by the non-member spouse, in accordance with the family law superannuation legislation.

(3) On written notice by a member spouse or a non-member spouse, or by any other person or court, of a family law superannuation entitlement of a non-member spouse to which this section applies, the trustees must take one of the following actions:

(a) pay or release to the non-member spouse an amount of the value of the family law superannuation entitlement (less any costs chargeable by the trustees),

(b) transfer or rollover to a complying superannuation fund or an RSA nominated by the non-member spouse an amount, of the value of the family law superannuation entitlement (less any costs chargeable by the trustees), to be held for the benefit of the non-member spouse.

(4) The trustees may take the action set out in subsection (3) (a) only if the member spouse is in receipt of a pension under this Act or the non-member spouse has satisfied a condition for payment or release of a benefit of a kind that would entitle a member to payment of a benefit if the Fund were a complying superannuation fund.

(5) The trustees must transfer a family law superannuation payment to FTC for crediting to the First State Superannuation Fund if:

(a) the payment is not payable under subsection (3) (a), and

(b) a non-member spouse fails, within the period prescribed by the regulations, to make a nomination for the purposes of subsection (3) (b) or a nominated fund or RSA does not accept the nomination.

(6) For the purposes of this section, the value of a family law superannuation entitlement or family law superannuation payment of a non-member spouse is to be determined by the trustees in accordance with any applicable provisions of the regulations and the family law superannuation legislation.

(7) The trustees must not pay a family law superannuation payment to or in respect of a non-member spouse under this section if the value of the payment that is or would be payable to or in respect of the non-member spouse at that time (taking into account any prior liability to pay a family law superannuation payment) is greater than the value of the member spouse’s superannuation interest (as calculated in accordance with the regulations) at that time.

(8) This section does not apply to or in respect of a pension while payment of the pension is suspended under this Act.

29D Reduction of benefits of member spouses

(1) The trustees may reduce the amount of any benefit payable under this Act to or in respect of a member spouse (or a spouse or de facto partner of a member spouse) if a family law superannuation entitlement is paid or payable to or in respect of the non-member spouse under the family law superannuation legislation or this Part or the regulations.

(2) A preserved or deferred benefit may be reduced under this section.

(3) A pension may be reduced under this section even though payment of the pension first commenced before the payment of the amount to or in respect of the non-member spouse.

(4) The benefit is to be reduced in accordance with the regulations and any applicable provisions of the family law superannuation legislation.

29E Regulations Regulations may be made for or with respect to the following matters:

(a) elections by non-member spouses for payment of family law superannuation entitlements,

(b) the persons or bodies to whom a family law superannuation payment may be paid,

(c) the composition of payments made for the purposes of the family law superannuation legislation or this Part, having regard to the composition of the member spouse’s superannuation interest under this Act before the payment is paid,

(d) the payment of fees for or with respect to family law superannuation payments,

(e) notice of family law superannuation entitlements and payment splits,

(f) the periods for payment of family law superannuation payments,

(g) the calculation of payments and entitlements for the purposes of the family law superannuation legislation or this Part,

(h) the calculation of the value of superannuation interests of member spouses for purposes relating to the family law superannuation legislation or this Part,

(i) the accrued benefit multiple for member spouses, or a class of member spouses, for the purposes of the family law superannuation legislation,

(j) the reduction of benefits (including deferred or preserved benefits) payable to or in respect of member spouses, or spouses or de facto partners of member spouses, as a consequence of payments under the family law superannuation legislation or this Part,

(k) without limiting paragraph (j), the commutation of pensions or parts of pensions for the purposes of the reduction of benefits as a consequence of payments under the family law superannuation legislation or this Part.

[5] Schedule 1 Savings, transitional and other provisions

Insert at the end of clause 1 (1):

Superannuation Legislation Amendment (Family Law) Act 2003 (but only to the extent that it amends this Act)