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Separating couples to get easier access to partner's super details

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Published by:
Ian Fox
Published on:
September 26, 2021
Separating couples to get easier access to partner's super details

New laws to make it easier for divorcing couples to access partner’s super details

Couples going through divorce proceedings will be able to access their partner’s superannuation information more easily in future.

From 1 April 2022 the Australian Taxation Office (ATO) will be able to release this information to a family law court.

If one of the divorcing parties believes the other is not being forthcoming about the value of their super assets, they’ll be able to apply to the court to have the information disclosed.

Previously, unless the information was willingly supplied, it had to be obtained through expensive and time-consuming subpoenas or court orders.

In making it easier to access super information, the new laws will reduce the risk of a partner under-reporting their super and getting away with it.

This is especially important to women who — because they do most of the caring for children and thus work less than men — retire with around 42% less super than men.

What happens to super in a divorce?

In a divorce, super is treated like any other asset and included in the division of assets in a property settlement or financial agreement.

There are generally three ways of dealing with super benefits on separation, namely:

  1. Payment split — the spouse who is a member of a fund has part of their super benefit paid to the non-member, ex-spouse.
  2. Payment flagging — the super benefit is paid to the non-member, ex-spouse when a future event occurs (e.g. they retire).
  3. No split or flag — the super benefit remains untouched, with the non-member, ex-spouse being given non-superannuation assets of the relationship instead.

If a superannuation account is split, the funds are often rolled over or transferred into the receiving spouse’s super account and remain there until they’re legally allowed to access it.

The funds retain the taxable and tax-free components of the account from which the funds are being transferred.

Self-managed super funds

If the super is held in an SMSF, there are extra considerations, especially if, as is often the case, the divorcing couple are trustees of the same two-member SMSF.

Unsurprisingly, it’s common for one member to step down from the SMSF when they divorce.

While an SMSF cannot normally acquire assets such as residential property from a related party, it can when the acquisition stems from a marriage breakdown.

In this case, the rules allow an in-specie rollover under a court order or financial agreement,  saving the former couple from being forced to sell the property.

The spouse to whom the property is transferred does not have to pay any capital gains tax on it.

Get expert advice

If you and your spouse are contemplating divorce and you’d like some advice on your finances, including how best to deal with your super upon separation, we can help.

Contact us for a complimentary consultation at info@modoras.com or 1300 888 803.

IMPORTANT INFORMATION: This blog has been prepared by Modoras Wealth Management (VIC) Pty Ltd ACN 145 368 869, a Corporate Authorised Representative (No. 383940) of Modoras Pty Ltd ABN 86 068 034 908 an Australian Financial Services and Credit Licences (Number 233209), located at Level 3, 50-56 Sanders St, Upper Mt Gravatt Q 4122. The information and opinions contained in this fact sheet are general information only and is not intended to represent specific personal advice (Accounting, taxation, financial, insurance or credit). No individuals personal circumstances have been taken into consideration for the preparation of this material. Any individual making a decision to buy, sell or hold any particular financial product should make their own assessment taking into account their own particular circumstances. The information and opinions herein do not constitute any recommendation to purchase, sell or hold any particular financial product. Modoras Wealth Management (VIC) Pty Ltd recommends that no financial product or financial service be acquired or disposed of or financial strategy adopted without you first obtaining professional personal financial advice suitable and appropriate to your own personal needs, objectives, goals and circumstances. Information, forecasts and opinions contained in this fact sheet can change without notice. Modoras Wealth Management (VIC) Pty Ltd does not guarantee the accuracy of the information at any particular time. Although care has been exercised in compiling the information contained within, Modoras Pty. Ltd. does not warrant that the articles within are free from errors, inaccuracies or omissions. To the extent permissible by law, neither Modoras Wealth Management (VIC) Pty Ltd nor its employees, representatives or agents (including associated and affiliated companies) accept liability for loss or damages incurred as a result of a person acting in reliance of this publication.

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