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Financial issues and settlementDivorce and separation

De facto super-splitting laws go national

By October 31, 2018October 28th, 2021No Comments

In a media release last week, Federal attorney-general Christian Porter announced that the long-awaited reforms regarding de facto super-splitting for couples in Western Australia would now go ahead.  Following a relevant amendment of the Family Law Act 1975, separating de facto couples in that state will in future be able to obtain a fairer split of their superannuation assets in property settlements under family law.

Until now, Western Australian de facto couples have each left a relationship with their own individual superannuation after a breakup, compared to de facto couples in other states who have had to include superannuation in their asset pool in the same way as any other financial asset.

Commonwealth laws extended de facto super-splitting arrangements to de facto couples in all other states in 2009. For the past decade however, the Western Australian state government has been locked in a “stalemate” with the Commonwealth Government over the issue. Western Australia’s family court exists separately to the Federal family court framework, and while all other states had previously already referred powers to the Commonwealth, Western Australia had held out.

Now, the WA Government has provided limited referral of powers to the Commonwealth Government in order to enable de facto super-splitting. This brings Western Australian de facto couples into line with de facto couples in all other states and territories. Other aspects of property division will remain under Western Australian law.

A just and equitable division of superannuation interests will enable couples to achieve a fairer overall property settlement after a breakup. Superannuation is often a couple’s second largest asset, after the family home. However, men and women differ in their super balances, with men typically holding bigger super nest eggs than women, who have often spent time outside the workforce raising children. This has caused a situation which Mr Porter has described as “fundamentally unfair”, particularly disadvantaging many women in property settlements.

“De facto couples in the West have, for too long, had to put up with a situation regarding the treatment of super assets in property settlements which is different to the rest of the country. This has disadvantaged many people, particularly women, in property settlements. It has resulted in inequitable splits of property, especially in situations where superannuation is the main asset – as occurs often when housing property is heavily mortgaged.”

“If a woman has got $100,000 in super and there is $100,000 equity in a house, and the man has got $500,000 super, then the woman always comes out worse off than she would under any other situation in Australia — and that’s just not fair,” The West Australian reports Mr Porter as saying.

Over 200,000 Western Australians classified themselves as de facto in the 2016 Census, an increase of 30,000 people since 2011.  Those de factos who are separating will likely be able to take advantage of the de facto super-splitting legislative amendments from 2020.

Would you like advice in relation to super-splitting or how your superannuation might be treated under family law? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

You may also like to read our blog regarding obtaining a superannuation valuation.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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