Fenton and Fenton

In Fenton and Fenton, heard before Judge McGuire, the parties sought orders for the division of their property. The dispute concerned the extent to which their respective superannuation entitlements should be included in the property pool and how the net value of the remaining property should be divided.

The court was required to determine the appropriate percentage split of the net value of the parties' property, excluding superannuation entitlements. Additionally, the court had to consider the treatment of the former matrimonial home and the chattels in possession of each party. A significant issue was the division of the wife's superannuation entitlement, specifically the amount to be paid to the husband from the superannuation fund and the mechanism for this payment.

The court ordered that the net value of the parties' property, excluding superannuation, be divided 70% to the wife and 30% to the husband. The former matrimonial home was to be sold, with liberty to apply regarding sale terms if agreement could not be reached. Each party was to retain their current chattels and motor vehicles, subject to indemnifying the other party for any liabilities attaching to those assets. Crucially, in accordance with section 90MT(1)(a) of the Family Law Act 1975, the husband was entitled to $19,458.00 from the wife's superannuation, with a corresponding reduction in the wife's entitlement. The operative time for this payment split was set as four business days after service of the orders on the superannuation fund's trustees. The court also imposed restraints on the wife regarding her superannuation to prevent it from becoming a non-splittable payment until certain conditions were met, including the establishment of a separate account for the husband or his receipt of the payment split. Liberty to apply was granted to the parties and the trustee of the Fund concerning the implementation of these superannuation-related orders.