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SICK WIFE WANTS 75% OF HER HUSBANDS SUPER FUND

Khoza & Nkosi [2020] FCCA 2908 (27 October 2020)

This case involves an adjustment of property interest where the wife seeks orders to receive 75% of the husband’s interest in his Superannuation fund.

Facts:

The wife seeks orders in accordance with s.90XT(1)(b) of the Act to receive 75% of the husband’s interest in his B Superannuation fund and that the furniture, furnishings and effects presently held in shipping container be declared the sole property of the wife.

In 2012, the wife was diagnosed with a medical condition. This is a chronic condition, which has a significant impact on the wife’s overall health and ability to enjoy life. The condition has recently impacted upon the wife’s ability to work.

In February 2016, the husband unilaterally packed the parties’ household goods (including two motor vehicles) in a shipping container, arranged for it to be transported to Country D and left Australia. He thereafter stopped communicating with the wife.

Although she worked on a full-time basis, the wife was the primary homemaker and parent. The husband mowed the lawns, made minor repairs around the house and occasionally cooked. The wife was responsible for the majority of the cleaning, cooking and other household tasks, including grocery shopping and doing the laundry. She attended the children’s sporting and school functions. The children were 13 and 11 when they migrated to Australia.

Issue: Should the court grant the orders sought by the wife?

Law:

Analysis:

The wife accepts that the husband was employed and accumulating superannuation for a period of  17 years prior to their marriage. He continued to accumulate superannuation for the next 8 years while the parties were together. There is no evidence as to the value of the husband’s superannuation at various points in time, except at the time of his retirement when he retained a significant lump sum. The present value of the husband’s superannuation interest is $240,981

The assets of the parties in Australia are essentially limited to the items contained in the shipping container, a motor vehicle and the parties’ respective superannuation. The trustee of the husband’s superannuation fund has indicated no objection to the splitting orders sought by the wife.

The wife is of ill-health and has a limited capacity to earn an income due to her health. She has the continued care for her daughter. The orders sought by the wife will provide for the parties to retain property held in their names in Country D, it will provide for the wife to receive a further income stream noting her reduced income earning capacity due to her illness and it will provide for the wife to retain the goods and chattels which were accumulated during the parties’ relationship and which remain in Australia. The orders sought by the wife will ensure that the husband continues to receive an income through his superannuation, albeit a reduced one.

Conclusion: In all of the circumstances of this case, it is just and equitable that orders as sought by the wife are made.

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