Commonwealth Consolidated Acts

SUPERANNUATION ACT 1976 - SECT 110

  (1)   Where a person (in this section called the deceased person ) who is an eligible employee or a retirement pensioner dies and is survived by more than one spouse, benefit is only payable under Division   1, 2, 3 or 3A in accordance with this section.

  (2)   Subject to this section and section   110AB, benefit payable under Division   1, 2, 3 or 3A to those spouses is such benefit as would be payable in respect of the deceased person if the deceased person had had only one spouse who survived him or her.

  (3)   CSC must, having regard to:

  (a)   the respective needs of the surviving spouses; and

  (b)   the respective needs of any eligible child or eligible children, or any partially dependent child or partially dependent children, of the deceased person; and

  (c)   such other matters as CSC considers relevant;

allocate any benefit payable in respect of the deceased person under Division   1, 2, 3 or 3A (other than a benefit payable in accordance with section   91) among those spouses, subject to the limitations set out in subsections   (4) and (5), and benefit is payable accordingly.

  (4)   The amount of spouse's pension payable to a spouse must not exceed:

  (a)   if the deceased person was, immediately before his or her death, an eligible employee who had not attained his or her maximum retiring age--the applicable percentage of the annual rate of the invalidity pension to which the deceased eligible employee would have been entitled under section   67 or 70 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to invalidity pension under that section; or

  (b)   if the deceased person was, immediately before his or her death, an eligible employee who had attained his or her maximum retiring age--the applicable percentage of the annual rate of the standard age retirement pension to which the deceased eligible employee would have been entitled under section   56 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to standard age retirement pension under that section; or

  (c)   if the deceased person was, immediately before his or her death, a retirement pensioner and had had a marital or couple relationship with the spouse that had begun:

  (i)   before the retirement pensioner had become a retirement pensioner; or

  (ii)   before the retirement pensioner had turned 60; or

  (iii)   not less than 3 years before the pensioner's death;

    --the applicable percentage of the annual rate of pension payable to the retirement pensioner before his or her death; or

  (d)   if the deceased pensioner was, immediately before his or her death, a retirement pensioner and had had a late short - term marital or couple relationship with the spouse--such percentage of the annual rate of pension payable to the retirement pensioner immediately before his or her death as is determined by CSC.

  (5)   The applicable percentage mentioned in paragraphs   (4)(a) and (b) is:

  (a)   if there are no eligible children of the deceased person in the custody, care and control of the spouse--67%; or

  (b)   if there is one such eligible child--78%; or

  (c)   if there are 2 such eligible children--89%; or

  (d)   if there are 3 or more such eligible children--100%.

  (5A)   The applicable percentage mentioned in paragraph   (4)(c) is the percentage worked out in accordance with the following table:

  (5B)   In making a determination under paragraph   (4)(d), CSC must take into consideration:

  (a)   the extent to which spouse's pension payable to the spouse of a deceased pensioner under Division   3 is reduced when the spouse and the deceased pensioner have been in a marital or couple relationship of the kind referred to in paragraph   (4)(d); and

  (b)   whether there is in the custody, care and control of the spouse one, or more than one, eligible child who:

  (i)   was not born of the marital or couple relationship referred to in paragraph   (4)(d); or

  (ia)   was not a child of the spouse, and the pensioner, within the meaning of the Family Law Act 1975 ; or

  (ii)   did not become a stepchild of the pensioner as a result of that marital or couple relationship; or

  (iii)   is not a child of the person with whom the pensioner had that marital or couple relationship.

  (6)   Where, under subsection   (3), CSC allocates a benefit payable in respect of a deceased person and there is an eligible child or eligible children, or a partially dependent child or partially dependent children, of the deceased person, CSC must determine the part of the benefit that is attributable to each such child other than, in the case of a benefit payable under section   91 or 95, a partially dependent child.

  (7)   Benefit attributed under subsection   (6) to an eligible child or eligible children of the deceased person not in the custody, care and control of any of the surviving spouses must not exceed in the aggregate:

  (a)   if the deceased person was, immediately before his or her death, an eligible employee who had not attained his or her maximum retiring age--the applicable percentage of the annual rate of the invalidity pension to which the deceased eligible employee would have been entitled under section   67 or 70 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to invalidity pension under that section; or

  (b)   if the deceased person was, immediately before his or her death, an eligible employee who had attained his or her maximum retiring age--the applicable percentage of the annual rate of the standard age retirement pension to which the deceased eligible employee would have been entitled under section   56 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to standard age retirement pension under that section; or

  (c)   if the deceased person was, immediately before his or her death, a retirement pensioner and had been in a marital or couple relationship that had begun:

  (i)   before he or she had become a retirement pensioner; or

  (ii)   before he or she had turned 60; or

  (iii)   not less than 3 years before the pensioner's death;

    the applicable percentage of the annual rate of pension payable to the retirement pensioner immediately before his or her death.

  (7A)   If:

  (a)   the deceased person:

  (i)   was, immediately before his or her death, a retirement pensioner; and

  (ii)   had had a late short - term marital or couple relationship; and

  (b)   one or more than one eligible child of the pensioner:

  (i)   was born of that marital or couple relationship; or

  (ia)   was, within the meaning of the Family Law Act 1975 , a child of the pensioner and the person with whom the pensioner had that marital or couple relationship; or

  (ii)   became a stepchild of the pensioner as a result of that marital or couple relationship; or

  (iii)   is a child of the person with whom the pensioner had that marital or couple relationship; and

  (c)   that child or any of those children is not in the custody, care and control of any of the surviving spouses;

the following provisions apply:

  (d)   benefit attributed under subsection   (6) to that child or to each of those children should be less than the amount of benefit that would be attributed to him or her if he or she were an eligible child other than a child referred to in paragraph   (b);

  (e)   benefit attributed under subsection   (6) to the eligible child or eligible children of the deceased person not in the custody, care and control of any of the surviving spouses must not exceed in the aggregate such proportion of the applicable percentage of the annual rate of pension payable to the retirement pensioner immediately before his or her death as is determined by CSC.

  (7B)   In making a determination under subsection   (6) as affected by paragraph   (7A)(d) or under paragraph   (7A)(e), CSC must take into consideration:

  (a)   the extent to which spouse's pension payable to the spouse of a deceased pensioner under Division   3 is reduced when the spouse and the deceased pensioner have been in a marital or couple relationship of the kind referred to in paragraph   (7A)(a); and

  (b)   whether the eligible child or any of the eligible children not in the custody of any surviving spouse was or was not a child referred to in paragraph   (7A)(b).

  (8)   The applicable percentage mentioned in paragraphs   (7)(a) and (b) is:

  (a)   if there is one eligible child not in the custody, care and control of any of the surviving spouses--45%; or

  (b)   if there are 2 such eligible children--80%; or

  (c)   if there are 3 such eligible children--90%; or

  (d)   if there are 4 or more such eligible children--100%.

  (8A)   The applicable percentage mentioned in paragraph   (7)(c) is the percentage worked out in accordance with the following table:

  (9)   Benefit attributed under subsection   (6) to a partially dependent child or partially dependent children of the deceased person must not exceed in the aggregate the lesser of:

  (a)   the annual rate of the regular maintenance payments being made, or required to be made by order of a court, in relation to the child or children by the deceased person immediately before his or her death; or

  (b)   the maximum benefit that, under subsection   (7) or (7A), could be attributed to the child or children if the child or children were an eligible child or eligible children, as the case may be, of the deceased person not in the custody, care and control of any of the surviving spouses.

  (10)   Where the deceased person was, immediately before his or her death, an eligible employee who had attained his or her maximum retiring age:

  (a)   CSC, having regard to:

  (i)   the respective needs of the surviving spouses; and

  (ii)   the respective needs of any eligible child or eligible children; and

  (iii)   such other matters as CSC considers relevant;

    must, for the purposes of ascertaining the benefit payable in accordance with section   91, allocate the accumulated contributions of the deceased person among such spouses; and

  (b)   section   91 applies in relation to a spouse of the deceased person as if:

  (i)   the deceased person had had only one spouse who survived him or her and that person were that spouse; and

  (ii)   the accumulated contributions of the deceased person were the part of those contributions allocated to that spouse under paragraph   (a); and

  (iii)   each reference in that section to 13.4 per centum were a reference to such percentage as bears to 13.4 per centum the same proportion as the part of the accumulated contributions of the deceased person allocated to that spouse under paragraph   (a) bears to the accumulated contributions of the deceased person.

  (11)   Where, under subsection   (10), CSC allocates a benefit payable in respect of a deceased person and there is an eligible child or eligible children of the deceased person not in the custody, care and control of any of the surviving spouses, CSC must determine the part of the benefit that is attributable to each such child.

  (12)   Each of the surviving spouses of a deceased person may make such elections under this Act in relation to the part of a benefit allocated to the spouse that is not attributable to a child or children (being a child or children not in the custody, care and control of the spouse) as could be made by the spouse in relation to the benefit if the deceased person had had only one spouse who survived him or her and that person were that spouse.

  (13)   Where a benefit is payable in accordance with an allocation made under subsection   (3) or (10), CSC, having regard to the respective needs of the persons mentioned in that subsection and to such other matters as CSC considers relevant, may vary the allocation from time to time.

  (14)   Where:

  (a)   benefit is payable to the surviving spouses of a deceased person under subsection   81(1) or (2); and

  (b)   the spouses are entitled under subsection   (12) of this section to make an election under section   84 or 87; and

  (c)   one or more, but not all, of the surviving spouses make such an election;

then:

  (d)   unless CSC otherwise directs, orphan pension is not payable in respect of a child (including a child of a kind referred to in subparagraph   (b)(i) or (ii) of the definition of child in subsection   3(1)) of a spouse who makes such an election; and

  (e)   if orphan pension becomes payable in respect of a child or children of the deceased person, the rate of the pension is such rate as CSC determines, being a rate equal to such rate as CSC considers would have been the rate of pension payable to, or for the benefit of, that child or those children but for paragraph   (d).

  (15)   Orphan benefit is not payable under section   102, 103, 104, 107 or 108 in respect of the children of a deceased person until the death of the last of the surviving spouses entitled to pension under this section.

  (16)   A reference in subsection   (4) to spouse's pension does not include a reference to spouse's additional pension mentioned in sections   89 and 93.

  (17)   For the purposes of this section, in determining the needs of a spouse, disregard any need that results from an election made by the spouse under section   146E.

  (18)   CSC must ensure that so much of a spouse's pension as is commuted under section   146E is not allocated under this section.