Obviously divorces and separations are difficult times – especially when children are involved.
This brief discussion deals with some of the legal issues.
The key points of note
The four pillars of advice are:
Firstly, any agreement on the split of assets is unenforceable, until it has been endorsed by the Court. This is to stop one partner intimidating the other partner to agree to an unfair split on the asset pool.
Secondly, there are limitation periods and you need to make your claim on the asset pool within a specified period – so get advice ASAP, or you risk losing your rights.
Thirdly, any property transferred to give effect to a property agreement, is stamp duty exempt, provided formal Court Orders have been made. This can also protect the asset from attack by any creditors of the other partner to the relationship.
Fourthly, before you separate, try to get a binding financial agreement in place – this reduces and often avoids the areas of dispute. The best way to separate is according to an agreement for custody and property – that way the emotional toll is far less as the terms have already agreed, and the partners can then move on more quickly and with more dollars.
Irish Bentley lawyers are experienced in all of these issues.
Binding Financial Agreements (also known as pre-nups, or post nups) are also an important asset protection document where one of the partners is engaged in risky business activity.
What happens when there is a family company?
A recent ruling from the Australian Taxation Office (ATO) will create a tax burden for many divorcing couples that have assets tied up in a company.
Previously, when a company transferred assets or cash to one of the former spouses under a Family Court order, many people took the view that the transfer was not treated as a dividend and did not trigger tax. However, in a ruling released on 30 July 2014, the ATO confirms that any settlements paid out by a corporate entity are treated as income and taxed at the relevant spouse’s marginal tax rate.
If you are receiving assets from a corporate entity as part of a property settlement, it’s essential that you understand the tax implications prior to settlement or a sizeable chunk of the settlement could go to the ATO.
For business owners, outside of the tax and financial issues, it’s important to not lose focus on what’s important to keep the business running efficiently.
Irish Bentley Lawyers have extensive experience in taxation law and can assist.
What happens to your superannuation in a divorce?
A spouse’s interest in superannuation is a marital asset and can be split as part of the breakdown agreement.
It’s important to be aware however that superannuation cannot be paid directly to a spouse unless the spouse is eligible to receive superannuation (they have met a condition of release) but it can be rolled over into the spouse’s fund until they are eligible to receive it.
Laws exist to prevent taxes such as Capital Gains Tax being triggered when superannuation assets are transferred.
This is particularly important where your superannuation fund holds property.
A Court order or Superannuation Agreement is required to give effect to the agreed split in the SMSF assets or to execute a rollover eligible for the CGT rollover concession.
If you have a SMSF and both spouses are members, it’s important to get advice to make sure that all of the appropriate administrative issues are taken care of.
For example, removing a trustee can make the SMSF non-compliant, and expose the trustee to severe penalties.
Where a divorce is not amicable, it’s important to keep in mind that the SMSF trustee is required under law to act in the best interests of the fund and its beneficiaries.
Anything less and the fund members may seek compensation for loss or damage.
Can you protect both parties from divorce?
In a divorce, assets are split based on a multitude of factors such as earning capacity, maintenance of children, and the assets held pre marriage.
Many couples don’t go through their marriage with an equal view of how assets and income should be attributed until something goes wrong.
If there is a disparity between the income levels of each spouse, there are a lot of benefits to the household in general of evening out how income flows through to the family.
If your partner earns less than you, there is a very real financial benefit to topping up their super as superannuation has preferential tax rates.
The same goes for taxable income.
If you can even out income coming into the household, it spreads the tax burden. Good planning can make a difference.
What happens to your Will
You will need a new one.
Irish Bentley are experienced in drafting simple and complex Wills, and in particular we recommend the use of testamentary trusts due to the associated taxation and asset protection advantages.