“When dealing with property splits and superannuation splits, the member spouse is the member that holds the interest that you’re dealing with. If you have a member who has an accumulation account, and there's talk about splitting part of that interest to their spouse, the member that owns the interest now is the member spouse, and their spouse that you may be splitting the interest to is the non-member spouse.”

He said this is correct terminology, regardless of whether they are a member of the fund or not.

“In terms of dealing with the family law side of things, it's just purely a who owns the interest and who is the interest.”

“It's not uncommon that you’re splitting on a cost basis. For example, you might be splitting some money from the husband to the wife, and at the same time, also splitting some money from the wife to the husband. Under that scenario, both members are potentially going to be a member spouse in terms of their own interest, and the non-member spouse in terms of the other person that they may be getting some benefit.”

In a situation where there is a family law split of the superannuation, Ellem said, it is also important to consider what is termed the operative date.

“Most agreements will have an operative date built into them, but if they don't, the Family Law Act tells us that the operative date is generally the start of the fourth business day, after which the court order or the agreement has been served on the trustee.”

“The operative date is when you need to think about doing things in the right order – the agreement gets served on the trustee, if the couple have already divorced there also needs to be a copy of the divorce certificate, or if they're only just separated, there needs to be a copy of the separation agreement accompanying that court order or binding financial agreement.”

Ellem said in most circumstances the agreement is built into the court order or the binding financial agreement, and won't always be provided as a document.

“When we talk about serving on the trustees as well, I think in my time, I've only ever seen that once as an administrator.”

“Generally in the SMSF space, because the members are the individuals that are getting separated, when they walk out of the court with the signed agreement, or whether they finalise the binding financial agreement, arguably, they've received that court order or that binding financial agreement on that because they're all one in the same person.”

Furthermore, he said, in SMSFs, the operative date is usually measured from when all the documentation was signed off and is executable, or has been executed.

“That's not to say that the operative date can't be something different. For example, you might have a fund that is heavily invested in property, and there might be an LRBA for that property.”

“One member is leaving the fund, but they don't have the cash ability to fund that transfer, so the court order or the binding financial agreement may say that the trustees of the fund must sell that property, payout the loan and then, with the remaining proceeds transferred to the husband or wife, they also need to transfer out of the fund.”