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NSW Can Ex-Wife Get Partner's Superannuation if He's in Jail?

Discussion in 'Family Law Forum' started by Elliottbunny, 21 May 2016.

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  1. Elliottbunny

    Elliottbunny Member

    21 May 2016
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    My partner has been separated from his (ex)wife for 8 months. They have 3 kids. It has been a very nasty split, with her taking out an AVO against him (no physical violence, no threats, just nasty emails from both sides). After she kicked him out, she refused to let him see the kids. He was depressed and has very little memory of the first 2 weeks after the split. He drove one night, 500m from the hotel to the house, drunk. Police didn't see him drive, but he admitted he had when she called them to have him removed from the property. He had gone to see the kids. Anyway, he got given drivers licence suspension (with an interlock program stipulation), and a 7 month suspended sentence and good behaviour bond for the AVO.

    Due to confusion over the drivers licence suspension, he drove approx 4km, and was caught. Went to court recently. The judge ordered an assessment done for the Intensive Correction program. The main issue with this is, we live in ACT, but the sentence was given in NSW. We have offered to move to NSW to do the program, but they haven't given us any indication of whether he would pass if we do. If he does not pass, he will have to go to jail.

    Now the ex-wife is attempting to get access to his superannuation if he goes to jail. She has also indicated that she will sell the house (has both names on the mortgage) and not give him his share. She has hinted that because he won't be able to pay child support while he is in jail, that she will use the proceeds of the house sale and his super to cover this.

    So, my questions are:

    1. Can we get corrections to assess him, with the stipulation that we move to NSW? We don't want to go to the considerable expense and effort of moving if he will end up in jail anyway. I have 3 kids I have to consider as well. We are happy to move, but only if he gets accepted in the program.

    2. Can we get him transferred to ACT corrections, and assessed through them?

    3. Can his ex get access to his super, or sell the house without his signature if he is in jail?
  2. AllForHer

    AllForHer Well-Known Member

    23 July 2014
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    The first two questions aren't family law, so I will leave those to someone with more expertise in those areas. The third question, though, I can provide insight on.

    She can't access his super, but she can pursue a property settlement that will include super as part of the asset pool. All the same, she won't be able to access that freely just because he's in jail.

    The house, and her threat to sell the house, is much more concerning. He needs to have a caveat put on it straight away, which will stop her from dealing with it any legal way until the caveat is lifted. This includes selling it.

    Child support must still be paid while he is in prison. He needs to contact the DHS and inform them of the changes to circumstances.

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