{"id":13551,"date":"2022-05-24T12:01:54","date_gmt":"2022-05-24T02:01:54","guid":{"rendered":"https:\/\/www.dbalawyers.com.au\/?p=13551"},"modified":"2022-05-24T12:08:29","modified_gmt":"2022-05-24T02:08:29","slug":"why-admit-a-conditional-member-in-an-smsf","status":"publish","type":"post","link":"https:\/\/www.dbalawyers.com.au\/smsf-strategy\/why-admit-a-conditional-member-in-an-smsf\/","title":{"rendered":"Why admit a conditional member in an SMSF?"},"content":{"rendered":"
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If the relationship between SMSF members falls apart, seeking to remove a member from the fund can prove difficult and expensive. Conditional membership can assist with an exit strategy. This is important to consider before admitting a new member especially a child or a second\/subsequent spouse.<\/p>\n
With a DBA Lawyers\u2019 SMSF deed, new members can be admitted on a conditional basis as it has all the relevant powers. Further, we can assist with a special suite of documents that can be tailored to also include any special conditions that you want.<\/p>\n
The DBA Lawyers\u2019 SMSF deed authorises the trustee to, upon on an \u2018exit event\u2019 occurring, remove a conditional member from the fund. This includes:<\/p>\n
One or more exit events can be specified, eg, on the divorce or separation of a couple who are members of the fund.<\/p>\n
ATO statistics suggest that around 70% of SMSFsi<\/sup> are two member funds and anecdotal evidence suggests the vast majority of these members in around 420,000 SMSFs (600,000 SMSFs x 70%) would be in a married, de facto or spousal relationship. The total number of divorces granted in 2020 in Australia was 49,510.<\/p>\n Assuming there is no spousal relationship, conditional membership can still be appropriate for other potential members such as children or other family members, relatives or friends and especially business \u2018partners\u2019.<\/p>\n A member\u2019s consent is required prior to removing them from the fund. Obtaining this consent in contentious circumstances can prove quite difficult and costly and may take years to resolve. However, with conditional membership, consent is obtained when the \u2018conditional\u2019 member is first admitted as a member to the fund. This means that on the occurrence of one or more exit events, the SMSF trustee can remove the member.<\/p>\n We are aware of numerous disputes (where conditional membership documents were not in place) where the departing member claimed payments well above their account balance before they agreed to exit the fund. In one case, the departing member demanded a substantial sum of cash from the other member (outside the fund) to \u2018clinch\u2019 the deal.<\/p>\n There are a range of exit events that could be considered for giving rise to a right to remove a member, including:<\/p>\n Conditional membership can assist if a current SMSF member wants to admit, say, a second\/subsequent spouse or a child and also wants the flexibility of removing them if a dispute or relationship breakdown ever arises.<\/p>\n Naturally, a binding financial agreement (BFA<\/strong>) is also highly recommended if a spousal relationship exists as the family court has broad powers to make orders that may cover an SMSF trustee and third parties to the relationship. Note the family court also has power in relation to a de facto relationship. The BFA should also deal with who gets to stay in the SMSF in the event of a marital or de facto relationship breakdown.<\/p>\n Broadly, the following steps should be followed:<\/p>\n Unless carefully and properly implemented with quality documentation and qualified and expert legal assistance, conditions sought to be imposed on admitting a member may be readily avoided or side stepped. Naturally, DBA Lawyers would be pleased to assist in providing quality advice and documentation to properly and legally admit a conditional member.<\/p>\n *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *<\/p>\n By Shaun Backhaus (sbackhaus@dbalawyers.com.au<\/a>), Senior Associate, and Daniel Butler (dbutler@dbalawyers.com.au<\/a>), Director, DBA Lawyers<\/p>\n Note: DBA Lawyers presents regular SMSF Online Updates. For more details or to register, visit www.dbanetwork.com.au<\/a> or call 03 9092 9400.<\/p>\n For more information regarding how DBA Lawyers can assist in your SMSF practice, visit www.dbalawyers.com.au<\/a>.<\/p>\n This article is for general information only and should not be relied upon without first seeking advice from an appropriately qualified professional.<\/p>\n 16 May 2022<\/p>\n —————————————-<\/p>\n i <\/sup>SMSF quarterly statistical report December 2021<\/p>\n If the relationship between SMSF members falls apart, seeking to remove a member from the fund can prove difficult and expensive. Conditional membership can assist with an exit strategy. This is important to consider before admitting a new member especially a child or a second\/subsequent spouse. With a DBA Lawyers\u2019 SMSF deed, new members can [read more<\/a>]<\/p>\n","protected":false},"author":35,"featured_media":6415,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[35,37,38],"tags":[],"ppma_author":[140],"yoast_head":"\nWhy is conditional membership useful?<\/h3>\n
What conditions or exit events are typically appropriate?<\/h3>\n
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Key steps for admitting a conditional member<\/h3>\n
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Conclusion<\/h3>\n
Related articles<\/h3>\n
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