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There is No Property – What Will I Get – Can I Share in the Superannuation

06/09/2021

Watson & Watson Lawyers acted for the wife in a case where after a long marriage the parties had ended up having very little in the way of assets at the time when the marriage broke down.  All that was left was the superannuation. The wife sought advice from Watson & Watson in relation to her entitlements. 

Background

The husband and wife came into the marriage with some personal assets and some savings.  During the course of a long marriage where there were 2 children who were adults by the time of separation.

The husband and wife had both worked hard and had purchased and sold a number of properties. 

The husband was a professional and had during the whole of the marriage enjoyed a high income including making significant contributions to his superannuation. 

The wife was employed in the health industry at the time they were married and took time away from work to raise the children.  Her superannuation contributions were small at the time she stopped work to care for the children.  As the children became older she worked from time to time and there were some additional superannuation payments.

Change of Circumstances

A few years before they separated the husband and wife decided on a lifestyle change. They sold their city home and purchased a country property that they intended to farm. They used the money that they received from the sale of their home to purchase the farm and to build a home on the farm and to purchase expensive farming machinery. They put all their money into this venture. The husband resigned from his employment and both the husband and wife worked on the farm.

The venture was unsuccessful and they lost money.  The wife continued to live on the farm and the husband returned to his former employment with a high income. The wife was able to find some employment in a casual capacity. The wife did not earn anything near the husband’s salary and could not support herself financially.

What was left to divide? What was to happen?

After a long marriage the husband and wife found themselves in a position where the only asset left was superannuation. The husband had a high income and could support himself. The wife had a low income (or sometimes no income) and could not support herself.

The husband’s position was that they should each retain what they had in superannuation, what they had in the bank and their personal property and furniture and walk away. The wife needed a better outcome.

Watson & Watson Advice and Action

Watson & Watson advised that there should be a property division and that the wife could make an application for payment of spousal maintenance to her by the husband. This was to address the very significant disparity of income and superannuation entitlements between the husband and the wife.

Watson & Watson commenced proceedings in the Federal Circuit Court of Australia seeking Orders in relation to division of property and splitting orders in respect of the superannuation.  A claim for spousal maintenance for the wife was included in the Application to the Court. The husband filed a Response to the wife’s Initiating Application and the matter came before a Judge in the Federal Circuit Court of Australia.

What is a Splitting Order?

The Family Court and the Federal Circuit Court of Australia have the power to make Orders splitting the superannuation entitlements of parties to a marriage between the parties to the marriage. The Court has the power to Order that the superannuation entitlement of one of the parties be split and that the amount of the superannuation “split off” be transferred to the superannuation fund of the other party. The practical result is the superannuation entitlements are balanced out between the parties. One party receives an allocation of the superannuation of the other party.

What is Spousal Maintenance

The Court can make an Order requiring one party to a marriage or a de facto relationship to pay (periodically or as a lump sum) money to the other party to support that party.

Court, Mediation and Outcome

The case came before a Judge in the Federal Circuit Court for Interim Hearing of the wife’ s application for an Order that the husband pay her spousal maintenance.

On the meticulous evidence that had been prepared by Watson and Watson, the Judge ordered the husband to pay the wife spousal maintenance. The parties then participated in a private Mediation to resolve all other issues. The case was resolved at Mediation and Orders were prepared and submitted to the Court for approval. The Court approved the Orders.

The Wife received some of the husband’s superannuation so that they both had an equal amount of superannuation. The husband was ordered to pay the Wife spousal maintenance.

Just because superannuation is the only asset left does not mean that there cannot be a property settlement. 

If you find yourself in a position where the only asset is superannuation and you are unsure what your rights are, at Watson & Watson our Senior Family Lawyers can assist you in the process of financial/property settlement to enable a fair and equitable spilt of the available asset/s.  Please contact Richard Watson Senior Family Law Solicitor or his Personal Assistant Shereen Da Gloria to discuss your matter and seek appropriate advice to your circumstances.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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