The passing of the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 (Cth) facilitates superannuation splitting for West Australian de facto couples by empowering the Family Court of Western Australia to make orders in relation to superannuation interests.
Separated married couples and separated de facto couples living elsewhere in Australia already have the benefit of seeking superannuation splitting orders, and they have had this benefit for several years already.
As of 28 September 2022, Western Australia is now aligned with the rest of the country.
Who is eligible?
To apply for orders in relation to superannuation interests arising from the breakdown of a de facto relationship, the Family Court of Western Australia must be satisfied that:
- the parties meet the geographical requirements – namely a connection with Western Australia; and
- the parties must have been in de facto relationship for at least 2 years.
There are limited exceptions to the requirements stated above.
Should you have final property orders in place (excluding interim orders) before 28 September 2022, then you are precluded from applying for superannuation splitting orders. However, if the property orders are set aside following 28 September 2022, then you could apply for a superannuation splitting order.
Should a financial or superannuation agreement already be in force before 28 September 2022, then you are precluded from applying for a superannuation split, unless the agreement is terminated or set aside after 28 September 2022.
How could I apply for a Superannuation Splitting Order?
If you are a party in a de facto relationship and are yet to commence proceedings, or are currently engaged in proceedings, then you can seek a superannuation split if the application is:
- Made within the standard application period of;
- 2 years after the end of the de facto relationship; or
- 12 months after a Western Australian financial agreement between the parties to the de facto relationship was set aside, or found to be invalid; or
- If both parties to the de facto relationship consent to the application, regardless of the amount of time that has passed since the end of the relationship.
There are limited exceptions to the requirements stated above.
Lynn and Brown Lawyers encourage anyone who has questions regarding their eligibility to apply for a superannuation splitting order to get in touch with one of our experienced family lawyers. You can contact us at www.lynnandbrown.com.au or by calling 9375 3411.
About the Authors: This article has been co-authored by Stewart Kattowitz & Manav Patel. Stewart is a Senior Associate in the family law team at Lynn & Brown Lawyers. Manav is in his final year studying a Bachelor of Commerce with a Major in Business Law and Finance. Manav will commence his Juris Doctor in 2023 at the University of Western Australia.
