Mary & William

This matter concerned an application by the wife for a flagging order under Part VIIIB of the *Family Law Act 1975* (Cth) in relation to the husband's superannuation entitlements. The parties, married in 1980 and separated in 2005, sought to finalise their property settlement. The husband, appointed a State Court Judge in 2005, may have entitlements under the *Judges’ Pensions Act 1971* (SA). The wife, who currently receives spousal maintenance, expressed concern that she might not be entitled to any interest under the Pensions Act in the event of the husband's death prior to the conclusion of proceedings.

The primary legal issue before the court was whether the husband possessed an "eligible superannuation interest" that could be subject to a flagging order. Specifically, the court had to determine if the husband's potential entitlements under the *Judges’ Pensions Act* and the *Superannuation Guarantee (Administration) Act 1992* (Cth) constituted such an interest. The wife sought to secure her potential future entitlement to a pension from the husband's superannuation in the event of his death.

The court reasoned that the husband's entitlement under the *Superannuation Guarantee (Administration) Act 1992* was merely an "expectancy" and not an eligible superannuation interest as defined by the *Family Law Act*. This was because no fund existed until the husband retired and simultaneously had no entitlement under the *Pensions Act*, and the statutory rights to these monies might never crystallise. Conversely, the *Judges’ Pensions Act* provided for a pension for a surviving spouse upon the death of a Judge, indicating a potential entitlement that could be subject to a flagging order.

The court ordered that the wife's application for a flagging order in relation to the husband's entitlements under the *Superannuation Guarantee (Administration) Act 1992* be dismissed. However, the court indicated that the wife's application in relation to the husband's entitlements under the *Judges’ Pensions Act* could proceed.