19 Dec 2018

Earlier this year, the Federal Attorney General, Christian Porter, announced that de-facto couples in Western Australia will soon be able to split their superannuation interests in financial proceedings in the Family Court. The proposed legislative amendments to the Family Law Act 1975 (Cth) will afford Western Australian de-facto couples the same opportunity to split their superannuation as their eastern states de-facto counterparts.

  1. what is the current state of the law

Married couples in Western Australia can “split” their superannuation as part of their Family Law property settlement. This means that a portion of one spouse’s superannuation can be transferred to another spouse’s superannuation fund. Whereas, de facto couples in WA are unable to “split” their superannuation. Unfortunately, the inability to split superannuation can result in an inequitable property settlement for de-facto couples. 

For further details about the current state of superannuation splitting laws in WA, see our article ‘I want half of my Ex’s Superannuation – Can I get it?’.

  1. why are de-facto couples currently disadvantaged

Often one of the largest assets a party to a de-facto relationship has is their superannuation. For example, where one de facto party has been the primary breadwinner and the other has been the primary homemaker and/or caregiver, their largest asset is often their superannuation. In this case, the homemaker is considerably disadvantaged if the parties separate and seek property settlement orders in the Family Court.

Unsurprisingly, some de facto parties have historically attempted to ‘out smart’ their former de-facto partner and the family law system, by makingadditional contributions to their superannuation fund during the relationship and/or post separation in an attempt to ‘protect’ those funds from being divided in a property settlement.

In the 2016 census, over 200,000 people declared that they were in a de-facto relationship. Accordingly, the proposed amendments will benefit a large number of Western Australians and  we look forward to the legislative amendments coming into force. 

We note that superannuation can be complex so it is important to seek expert advice from an experienced Family Lawyer.

This is only general information and does not constitute specific legal advice. The circumstances of each case are different. If you would like further information in relation to this matter or other legal matters please contact our office on Free call 1800 609 945 or email us now.

 

Written by Eliza Fitzgerald, Solicitor, Family Law.