s 90XL

Payment flag

In force

(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.

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