Superannuation Legislation Amendment Act 2010 (117 of 2010)

Schedule 3   Superanuation and relationship breakdowns

Superannuation Industry (Supervision) Act 1993

3   After section 71E

Insert:

71EA Relationship breakdowns

Scope

(1) This section applies if:

(a) a trustee or an investment manager of a regulated superannuation fund (the acquiring fund ) acquires an asset:

(i) for the benefit of a particular member of the acquiring fund; and

(ii) from a trustee or investment manager of another regulated superannuation fund (the transferring fund ); and

(b) at the time of the acquisition:

(i) the member and his or her spouse or former spouse are separated; and

(ii) there is no reasonable likelihood of cohabitation being resumed; and

(c) the acquisition occurs because of reasons directly connected with the breakdown of the relationship between the spouses or former spouses; and

(d) the asset represents the whole, or a part, of either:

(i) the member's own interests in the transferring fund; or

(ii) the member's entitlements as determined under Part VIIIB of the Family Law Act 1975 in relation to the interests of the member's spouse, or former spouse, in the transferring fund.

(2) For the purposes of subsection (1), the question whether the spouses, or former spouses, have separated is to be determined in the same way as it is for the purposes of section 48 of the Family Law Act 1975 (as affected by sections 49 and 50 of that Act).

Acquiring fund taken to have always held asset

(3) For the purposes of applying this Subdivision to the asset at or after the time (the acquisition time ) the trustee or investment manager of the acquiring fund acquires the asset, treat:

(a) the acquisition as having occurred at the time the trustee or investment manager of the transferring fund acquired the asset; and

(b) anything done by, for or in relation to the transferring fund in relation to the asset before the acquisition time as having been done by, for or in relation to the acquiring fund; and

(c) anything done by, for or in relation to the trustee or investment manager of the transferring fund in relation to the asset before the acquisition time as having been done by, for or in relation to the trustee or investment manager of the acquiring fund.

Section 71E elections

(4) In addition to their effect apart from this subsection, subsection 103(2A) (duty to keep record of election) and subsection 103(3), to the extent that it relates to subsection 103(2A), also have the effect they would have if subsection (3) of this section applied to them.

Note: This means that the trustees of both the transferring fund and the acquiring fund must retain, in accordance with subsection 103(2A), any election made under section 71E in relation to the transferring fund before the transfer of the asset.

(5) A person commits an offence if:

(a) the person is a trustee of the transferring fund; and

(b) just before the acquisition time, the trustee had a duty under subsection 103(2A) to retain an election, or a copy of an election, under section 71E in relation to the transferring fund; and

(c) the trustee does not, within 14 days after the acquisition time, give the election or copy to a trustee or investment manager of the acquiring fund.

Penalty: 50 penalty units.

Note: If the trustee gives the election to the acquiring fund, he or she must retain a copy of the election: see subsection (4).

(6) An offence against subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.