Superannuation – a protected species

Posted on May 11th, 2017

Share on LinkedInTweet about this on TwitterEmail this to someoneShare on Google+Print this page

Superannuation – it is to the asset world what the Orangutan, Black Rhino and Yantgzee Finless Porpoise is to the animal world – a protected species. 

The Superannuation Legislation provides clear rules limiting the use of superannuation, and access to it, other than in accordance with its intended use. For example, in the bankruptcy jurisdiction, superannuation is a protected asset, and is not available to creditors.

The Full Court of the Family Court has maintained the status of superannuation as a ‘protected species’ in the recent decision of Mackah & Mackah

Here the husband had failed to comply with an order that he pay $350,000 to the wife.  The wife then brought enforcement proceedings and obtained orders that the husband direct his Self-Managed Superannuation Fund to pay a Transition to Retirement Pension into an account jointly held by the parties; that the husband be restrained from using the account for his benefit; and all money in the account be paid to the wife.

The husband appealed the orders on the basis that they did not comply with the Superannuation Legislation.  The legislation clearly provided that (unless in defined circumstances) a member’s superannuation benefit can only be cashed in favour of the member.  The Full Court agreed that the orders that had been made by the lower Court were inconsistent with the provisions and set aside the original orders.  The parties were sent back to the lower Court to find another way for the wife to get her $350,000 from the husband.

Ashleigh John is a Senior Solicitor at Mullane & Lindsay, and practices extensively in Family, Relationship and Matrimonial Law. If you require any assistance in this area please contact Ashleigh John to arrange a consultation or contact our Newcastle office.

Share on LinkedInTweet about this on TwitterEmail this to someoneShare on Google+Print this page