Super News
for Defactos

 

Western Australia is often seen as being a ‘bit behind the times’ as compared to our Eastern States counterparts and until recently, that was certainly the case when it came to the rights of de facto couples.

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In Western Australia, the rights of separated couples is governed by two pieces of legislation. Married couples fall under the federal legislation The Family Law Act 1975 and de facto couples fall under the State legislation The Family Court Act 1997.

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For the most part the State legislation echoed the federal legislation, meaning that what applied to married couples would also apply to de facto couples, but that did not follow in relation to superannuation.

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The position taken in Western Australian legislation meant that if a de facto couple separated in Western Australia, unlike anywhere else in the Country, their superannuation balances would not be included as assets for the purposes of determining the division of property between them.

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This applied to all de facto couples in Western Australia, regardless of the length of the relationship, their sexual orientation or the size of the asset pool.

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Where asset pools were small, and the only major asset was superannuation, this created a significant inequality between the rights of married couples and those of de facto couples. 

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This peculiar approach taken by Western Australia for decades has resulted in a disproportionately harsh affect on women, who, generally speaking, tend to have accumulated smaller superannuation balances then their male parts, as a result of taking time out of the workplace to have and raise children. 

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This approach also meant that the rights of same sex de facto couples in Western Australia were less than the rights afforded to same sex couples anywhere else in Australia.

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In September 2022 the Western Australian government passed legislation to re-align Western Australia with the rest of the Country, allowing de facto couples in Western Australia to include superannuation in the division of their property after separation.

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This was a welcome and significant legal reform for Western Australia and one that was long overdue.

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