Published in the Coffs Coast Advocate on 29 November 2014.
When Peter and Kim were in their early 40s, their 15 year relationship broke down and they separated. They negotiated a property settlement and consent orders were made under the Family Law Act.
The agreement between them was that Peter would pay Kim the sum of $72,000 which consisted of half the value of his superannuation fund and half the equity in their home. The parties had no other assets of any significant value.
The orders also provided for Kim to pay Peter’s estate any of Peter’s superannuation entitlements that Kim may receive in the future.
Ten years later, Peter passes away. Because Peter and Kim were never formally divorced, she is entitled to a substantial pension from his police superannuation fund. The lump sum capital value of the payments is assessed at $340,000.
Unfortunately, the family law consent orders that were made approximately 10 years ago were not suitable because the wording referred to Peter’s entitlements when in fact the superannuation fund entitlements, upon Peter’s death became Kim’s entitlements. Kim relied on this, and refused to pay the funds to Peter’s estate.
Peter’s executors apply to the family court for a review of the original orders, which is made well outside the limitation period. Their application is granted in the “interests of justice”.
The court conducts a fresh examination of the property settlement which includes assessing Kim’s assets at $500,000 and the assets of Peter’s estate at $1 million.
The court considers the various contributions that were made by the parties towards the assets. The court also considers Kim’s future needs and notes that of course, Peter no longer has any “needs”.
The court ultimately finds that it is “just and equitable” to order a property settlement split of 45/55 in favour of Peter’s estate.
The result meant that although Kim retained Peter’s superannuation entitlements and all her other assets that she had accumulated up to the time of the hearing, she is ordered to pay Peter’s estate the sum of $80,000.
