Post-separation asset excluded from division

Post-separation asset excluded from division

Oliver & Oliver

How Should the Wife’s Superannuation be treated?

  1. The Wife has superannuation entitlements with (omitted) Superannuation Fund valued at $135,468 as at the 1st of June 2017.
  2. It is common ground between the parties that the Wife’s superannuation has been earned by her entirely since the parties separated and that the Husband has made no contribution to the Wife’s superannuation.
  3. It is submitted on behalf of the Wife that her superannuation should not be treated as an asset for division between the parties.
  4. The Husband does not seek to include the Wife’s superannuation as an asset for division between the parties but rather as a financial resource available to her that is not available to him.
  5. The Full Court in Zaruba & Zaruba [2017] FamCAFC 91 considered how a property acquired by a party after separation to which the other party had made no contributions should be treated.
  6. In Zaruba (supra) the Wife acquired a property “Mindarie” after the parties separated and to which the Husband made no contribution.
  7. In paragraphs 26 to 28 their Honours Bryant CJ, Thakray and Murphy JJ held:
    1. We consider with respect that his Honour erred in the application of s 79(2) of the Act in relation to Mindarie. Having determined to approach the parties’ respective s 79claims on an asset by asset basis, his Honour did not consider whether it was just and equitable to make any order pursuant to s 79(2) in respect of that property.
    2. By reference to the evidence before his Honour, and findings which are not the subject of challenge, we consider it was not open to his Honour to conclude that it was just and equitable to make any order altering the wife’s interests in Mindarie (or the cash, shares and superannuation just mentioned).
    3. Even if s 79(2) permitted of an order being made in respect of the property just mentioned, we consider that, in any event, his Honour erred. We are unable to see any evidentiary basis for his Honour’s finding that the husband had made “non-financial and indirect” contributions to Mindarie in the period between its purchase in 1993 and the wife’s departure from their shared residence in 2005.
  8. At paragraphs 38 to 40 their Honours concluded:
    1. In the vast majority of cases, it will be appropriate to address the s 79(2) question by ascertaining the legal and equitable interests in property without making distinctions between individual assets. That is because the “express and implicit assumptions that underpinned the existing property arrangements” can be seen to apply (to the extent and degree to which they do apply) to all of the property of the parties or either of them, including property in which the legal interests vary.
    2. However, the position is likely to be different in circumstances where, as here, the characteristics of the property and the circumstances of its acquisition, improvement and the like can be seen to differ significantly and where, as here, the parties’ relationship had taken on quite different characteristics during the period to which the s 79 inquiry is directed.
    3. We are respectfully unable to see any evidentiary foundation by which it was open to his Honour to conclude that it was just and equitable to alter the wife’s legal and equitable interest in Mindarie.
  9. Where the Wife’s superannuation was earned by her post separation and where the Husband has made no contributions to it whatsoever, it cannot be seen to be just and equitable to make orders that alter the Wife’s interest in her superannuation.
  10. It is noted the Husband has a very small superannuation entitlement of $1,157. As is the case with the Wife, the Husband’s superannuation was earned by him post separation and consists of contributions made solely by him. Accordingly it is not just and equitable that orders be made altering the Husband’s interest in his superannuation.


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