M & M

The Full Court of the Family Court of Australia, comprising Bryant CJ, Finn and Boland JJ, considered the appropriate method for valuing and accounting for superannuation entitlements in property settlement proceedings. The dispute concerned the application of a formula derived from *West and Green* (1993) FLC 92-395, which had been used by some practitioners to quantify superannuation for inclusion in the divisible property pool.

The central legal issue before the court was whether the formulaic approach, as applied in cases like *West and Green*, was a legitimate method for determining a party's superannuation entitlement for the purposes of property division under section 79 of the *Family Law Act 1975* (Cth). The court was required to consider whether such entitlements constituted property capable of division or whether they should be treated as a financial resource.

The court reasoned that the formula in *West and Green* was intended to address future payouts upon retirement, not to assess contributions to the date of hearing. It noted that subsequent cases, including *Harrison and Harrison* (1996) FLC 92-682 and *Bartlett & Bartlett* (1996) FLC 92-721, had expressed reservations about the formulaic approach. The court affirmed that, in most instances, superannuation entitlements are not considered property capable of division under section 79. Instead, the proper approach is typically to adjourn proceedings or treat the entitlement as a financial resource under section 75(2)(f) or (j) of the Act. The court indicated that when a superannuation payout has been received, it should be included as property, with adjustments made to contributions for pre-marriage and post-separation periods.