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

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.

5 things to consider if/when deciding to separate from your partner  

Separating from a partner can be a difficult and stressful time. There may be a level of anxiety about how the future might look and what your immediate concerns are. These can include:

  • Who will pay the mortgage or rent?
  • What happens to all the bills?
  • What are my entitlements?
  • Can I withdraw joint savings or other money to support myself?
  • If I borrow money after separation, how will that work?
  • What will the arrangements for the children be?

Read on for examples of matters you may want to consider:

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5 Life Events that may make you consider a Will

“I should really get my Will done”, is a regular refrain. In a busy world it is hard to find the time or the right motivation to go ahead and get it done. Generic Will ‘kits’ and online Wills may offer cheap ‘one size fits all’ options, but is that really going to adequately cover your intentions for your family and assets?

 

It is likely that there are things that you haven’t considered, which might require legal advice. For now, here are some common life events which should encourage you to make a Will:

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Intestacy law in WA: Changes to the Administration Act

The long awaited amendments to Western Australia’s Administration Act have now come into effect, significantly altering the distribution of a deceased person’s estate in the event of an intestacy (ie, the person dies without a Will). These changes overcome what was a manifestly inadequate provision for a surviving spouse or de facto partner (including a same sex partner). 

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I’m considering appealing a decision – how long do I have to appeal?

If you are seeking a review of a judgement or a decision of a Registrar or Magistrate of the Family Court of Western Australia, you need to file an application within 28 days of the decision. Extensions of time will not be automatically granted should you disagree with a decision. Should an appeal be delayed, the Judge or Magistrate hearing the application takes into account whether:

  1. the reason for the delay is satisfactory;
  2. there is a substantial issue to be raised on appeal; and
  3. the hardship or prejudice to the other party caused by the delay.

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Effect of death of a party to family law property proceedings

The ordinary rule is that upon the death of a party to property settlement proceedings under the Family Law Act 1975 (Cth), no further steps can be taken. The case automatically comes to an end.

The reason for the ordinary rule is that the case is entirely personal to the parties to the marriage Smith v Smith (No 3) (1986) FLC 91-732. The rule was recognised as applying to a property case under section 79 of the Family Law Act 1975 (Cth) by the Full Court of the Family Court in Sims and Sims (1981) FLC 91-072.

However, in 1983 section 79 was amended by inserting section 79(8). Since that time, a property case can be continued after the death of one party to a marriage (and now a de facto relationship) by the substitution of the deceased’s legal personal representative. Section 90SM (8) was inserted for de facto couples from 1 March 2009.
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No jab, no work – FWO’s updated advice still leaves questions for employers

The Fair Work Ombudsman (FWO) posted updated guidance on its website last night relating to the power of employers to mandate COVID-19 vaccinations for their employees.

This is an issue that we have also discussed before.

Previously, the FWO’s position was that employers are “overwhelmingly” unable to require employees to be vaccinated.

The FWO does provide a useful guide in dividing work into four broad tiers, as follows:

  1. Tier 1 work: where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).
  2. Tier 2 work: where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).
  3. Tier 3 work: where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).
  4. Tier 4 work: where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

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When Can I get divorced?

When Can I get divorced?

You can apply for a divorce one year after the date of final separation. This date of final separation is to be agreed between the two of you, or you shall have to provide evidence as to when the date occurred if your ex-partner is contending it was a different date and less than a year ago.

You can file the application jointly, with your ex-partner also signing it, or as a sole application, in which case they will just be given the opportunity to object to the application. (more…)