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Common issues with Self-Managed Superannuation Funds (SMSFs) in Family Law

Posted on 27th September 2018
Catherine Henry Lawyers
Catherine Henry Lawyers

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Common issues with Self-Managed Superannuation Funds (SMSFs) in Family Law

According to the ATO, over a million Aussies (and climbing) are members of a Self-Managed Super Fund (SMSF) as opposed to a defined benefit scheme or more typical accumulation fund. What many Australians may not know, however, is that if you separate from your spouse or de facto partner and you are a member of a SMSF, some considerations will need to be made during your property settlement that are not experienced by others who are part of a standard accumulation fund.

Like any other asset, your superannuation is an item of property which can be split between you and your spouse/de facto partner. To split property, it must be assigned value. Due to the nature of a SMSF, it may not always be straightforward to calculate what it is worth from a family law perspective. This is particularly evident when compared to an accumulation fund, in which you can obtain a value of just by reading your most recent statement.

During a property settlement, some common considerations which need to be given to a SMSF include:

  1. What are the nature of the SMSF assets?
  2. How do you value the SMSF?
  3. Are the parties the only members of the SMSF?
  4. Are the parties the trustee of the SMSF, or is there a third-party trustee, like a company?
  5. How do you split a SMSF when the Fund owns real estate rather than cash assets?
  6. What if the SMSF owns the family business premises, do you have to sell it if there isn’t enough cash to pay out the other party their entitlements?
  7. How will this impact on taxation obligations?
  8. Have you updated your Binding Death Nomination?

At Catherine Henry Lawyers we can help you navigate the complicated area of SMSFs. Our team can work in conjunction with your accountant and/or financial advisor to ensure that the SMSF remains compliant throughout the property settlement process, which is often a trying time.

Contact our Family Law team at 02 4929 3995, or inquire via email at info@catherinehenrylawyers.com.au

 

 

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