Superannuation Industry (Supervision) Regulations 1994

This regulation applies if the trustee creates a new interest for the non‑member spouse in the regulated superannuation fund or approved deposit fund in which the original interest is held:

to give effect to a request under regulation 7A.05; or

on the trustee’s initiative under paragraph 7A.03H(1)(aa) or 7A.10(1)(a).

Subject to subregulations (3) and (4), the value of the benefits that the non‑member spouse has in the new interest must be:

if the payment split is a base amount payment split and an adjusted base amount applies to the non‑member spouse when the new interest is created—the adjusted base amount less the amount of any fees payable by the non‑member spouse in respect of the payment split; or

if the payment split is a base amount payment split and an adjusted base amount does not apply to the non‑member spouse when the new interest is created—the base amount allocated to the non‑member spouse, within the meaning of section 72 of the Family Law (Superannuation) Regulations 2025, less the amount of any fees payable by the non‑member spouse in respect of the payment split; or

if the payment split is a percentage payment split:

for an entitlement, in respect of an accumulation interest in the growth phase that is not a partially vested accumulation interest, to which subparagraph (ii) does not apply—the amount in relation to the interest at the time when the new interest is created, determined in the way in which a court would determine an amount in accordance with section 51 and subsection 53(2) of the Family Law (Superannuation) Regulations 2025, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse in respect of the payment split; or

for an entitlement in respect of an interest in a self‑managed superannuation fund—the amount in relation to the interest at the time when the new interest is created, determined by a method that a court might use if the court were acting under paragraph 90XT(2)(b) or 90YY(2)(b) (as the case may be) of the Family Law Act 1975, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse in respect of the payment split; or

for an entitlement in respect of any other interest—the amount in relation to the interest at the time when the new interest is created, determined in the way in which a court would determine an amount in accordance with the relevant method in Part 6 of the Family Law (Superannuation) Regulations 2025, multiplied by the specified percentage, less the amount of any fees payable by the non‑member spouse in respect of the payment split.

If the payment split is a base amount payment split, and a splittable payment becomes payable in respect of the member spouse’s interest before the new interest is created, the value of the benefits that the non‑member spouse has in the new interest must be the amount applying under subregulation (2) less the amount the non‑member spouse is entitled to be paid in respect of the splittable payment.

The value of the benefits that the non‑member spouse has in the new interest must not be more than the value of the withdrawal benefit in relation to the member spouse and the original interest immediately before the new interest is created.

The value of the benefits that the member spouse has in his or her interest must be reduced by the sum of:

the value of the benefits that the non‑member spouse has in the new interest; and

the amount of any fees payable by the non‑member spouse in respect of the payment split.

In creating the new interest:

a proportion must be taken from the unrestricted non‑preserved benefits, the restricted non‑preserved benefits and the preserved benefits of the member spouse; and

the proportion taken from each category of benefits must be the same as the category bears to the member spouse’s interest immediately before the new interest was created.

The benefits held in the new interest are unrestricted non‑preserved benefits, restricted non‑preserved benefits or preserved benefits in accordance with the character that they had in the member spouse’s interest.

A new interest created to give effect to a request under regulation 7A.05 is taken to be created on the day when the trustee receives the request in accordance with regulation 7A.08.

A new interest created on the trustee’s initiative under paragraph 7A.03H(1)(aa) or 7A.10(1)(a) is taken to be created on the twenty‑ninth day after the date when the payment split notice in relation to the payment split was given by the trustee.

The trustee must give to the member spouse and the non‑member spouse, within 28 days after the new interest is created, a written notice stating:

that the new interest has been created; and

the amount allocated to the non‑member spouse in the new interest; and

if the payment split is a base amount payment split—the amount of any adjustment that has been made to the base amount since the operative time.