If you were in a de facto relationship in Western Australia and you have separated, your superannuation, and your former partner’s, can be divided as part of your property settlement. For many people, super is a large part of what they own, so it is worth understanding how this works before you agree on anything.
Here is what the law says, how super is valued, and what to do next.
What the law says
From 28 September 2022, de facto partners in Western Australia can split their superannuation as part of a property settlement, in the same way married couples can. “Splitting” simply means dividing super between the two of you.
The change applies to new property cases filed in the Family Court of Western Australia on or after 28 September 2022.
Why it matters
Legal Aid WA notes that super will usually make up a significant part of the pool of property to be divided after separation. If one of you has a lot more super than the other, how it is dealt with can make a real difference to how your property is divided overall.
If you are not sure whether your relationship counts as a de facto relationship under WA law, that is one of the first things we can help you work out.
How super is valued
How you find the value depends on the type of fund:
- Accumulation fund. This is a fund where your balance goes up and down with contributions and earnings. You can find its value on your latest statement, or in your ATO account through myGov.
- Defined benefit fund. This is a fund where your payout is worked out by a formula, rather than being a balance. The family law value is found using a specific calculation.
- If the value is unclear, you may need a valuation from a forensic accountant, which is an accountant who prepares valuations for family law matters.
Do not leave it too long
De facto partners need to apply to the Family Court within two years of their relationship ending. After that, you need the Court’s permission to apply, and permission is not always granted.
You do not have to argue it out in court. If you and your former partner agree on how to divide your property, including super, you can ask the Court to make consent orders. These are orders based on what you have both agreed, and they make your agreement official.
What to do next
- Gather your latest super statements, and your former partner’s if you have them.
- Write down the date you separated, because the two year time limit runs from when your relationship ended.
- Get advice early, before you sign anything or agree on figures.
If you have separated from a de facto partner and want to understand where you stand, call Joss Legal on (08) 6559 7480 or book an appointment through our website. We will talk you through your options in plain English.
This article is general information only and is not legal advice. Every situation is different, so please get advice about your own circumstances.