Changes to WA Law: De Facto couples can now apply for superannuation splitting

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There have been recent changes to Family Law legislation in Western Australia that may affect you, particularly with respect to superannuation splitting between de facto couples.

Previously, the Family Court Act 1997 (WA), did not provide for superannuation splitting between separated de facto couples. Accordingly, superannuation entitlements were not considered an “asset” or “property” of the de facto relationship for the purpose of dividing property between de facto couples following their separation. While it could be previously considered a ‘financial resource’ and may have resulted in an adjustment of property it was not possible to rollover superannuation from one partner to another.

At the end of 2019, the Family Law Amendment (WA De Facto Superannuation Splitting and Bankruptcy) Bill 2019 was introduced in Federal Parliament The Bill proposed to introduce legislation to permit the splitting of superannuation entitlements between separated de facto couples in Western Australia, which was previously only available to separated married couples in Australia and separated de facto couples in other States.

Subsequently, on 28 September 2022, the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 (Cth) passed parliament and became operative.

This now mean means that if you are a de facto partner who:

  1. has not received Final Orders in relation to your de facto relationship; or
  2. has not entered into a Financial Agreement;

you may apply to the Family Court, whether you have commenced proceedings or otherwise, for Orders with respect to superannuation splitting. If you are currently in proceedings before the Court, you may need to amend your Orders sought to seek a superannuation split.

We advise that in circumstances where superannuation is a significant asset of either party, you should obtain advice as to whether a superannuation splitting Order should be considered.

If you have not already commenced proceeding in the Family Court,  separated de facto couples have 2 years from the date of separation to bring an application in the Family Court of Western Australia as to financial matters between them. This does not mean the matter need to be settled within that time but you must make an Application for property settlement.