Oops – divorce on the horizon? What now?
Divorce is the worst-case scenario for a marriage. Amongst the emotional, legal and financial turmoil – which is only compounded if there are kids or pets involved – it can be easy to forget about your super.
If you are already within an SMSF, chances are your soon-to-be ex-partner is also a trustee. So what happens when retirement plans, like so many other things, were built with a shared future in mind?
Superannuation splitting within an SMSF does not differ greatly to super held within a traditional fund structure in the eyes of the law. Any difficulties are mostly commonly caused by the relationship between the trustees and the nature of assets held in the fund. Superannuation splitting laws exist to make sure a settlement is fair however, there are still several things to be aware of to avoid an unfair distribution of super.
Here are our top 4 things to keep in mind when navigating SMSF and super splitting due to divorce.
1. If you were married before 1975 make sure that your Deed allows for the requirements set out by the Family Law Act 1975.
Make sure your SMSF Trust Deed to reflect the requirements set out by the Family Law Act 1975. If your deed hasn’t incorporated the requirements, it won’t stop the law – it will just make things confusing for your Fund’s trustees. We can help you both through the process, set out below:
- Obtaining information
- Determining the documentation method
- Determine the splitting time and calculation
- Serving the superannuation agreement/order
- Notifying the parties
- Implementing the superannuation agreement/order and making payment.
2. Use a Family Court Document to request all of the information you will need. You will need to submit this yourselves, but you can get help from your adviser or accountant (or Greenlight).
3. Use your Consent Order (where the parties agree), Court Order (where the parties don’t agree) or a Superannuation Agreement to document how your combined super assets will be split. Just make sure you’re not planning to rely on a Stat Dec as it won’t suffice. Never heard of a Superannuation Agreement?
If you opt for a superannuation agreement, Greenlight can help you manage the process with your legal representatives or contact a specialist advisor on your behalf. Together, we will make sure your superannuation agreement is in the correct format, obtain signatures from both yourself and your partner, and organise a legal declaration which states that each party has received independent legal advice. This legal declaration will be accompanied by a statement from each legal practitioner that advice was provided. Superannuation agreements are a more expensive option across the board because of the added necessary legal expertise than the first two options.
4. The hard bit – splitting the assets. You’ll either be physically separating the assets immediately (Payment Split) or flagging the arrangements until a condition of release (such as Retirement) is met. This is called Payment Flagging.
There are two main payment types:
A payment split – the super payment is made now.
This payment type is the most consistent with the Family Court’s desire that property settlements represent a clean break. It involves creating an interest for the non-member spouse, either in the same fund or in a fund of their choice, which cannot be cashed until the non-member spouse meets a condition of release.
A payment flag – the super payment is deferred until a condition of release is met.
When the condition of release is met, the trustee notifies the court that a splittable payment will become payable. These may be suitable for defined benefit funds where a retirement benefit significantly larger than the current withdrawal benefit may be payable in the near future. However, they are rarely used in an SMSF.
The three main methods of calculating the amount of a payment split are:
- A percentage amount – a percentage of the account balance is payable
- A base amount – a fixed dollar amount is payable
- A calculated base amount – a method by which a base amount can be calculated
The hardest part about this when parties are in dispute is realising asset values, especially if valuations fluctuate considerably. Don’t make this time any harder on yourself, make sure you’re across all the facts and secure your retirement future.
