Property Settlements

WA: Am I Entitled to a Share of my Former Partner’s Super?

There are laws specific to Western Australia that govern the split of superannuation after couples separate.

In Western Australia there are state specific laws which govern the division of superannuation upon the separation of partners.

These laws apply differently to de facto and married couples.

De facto couples:

In WA de facto couples are not able to apply for a Superannuation Splitting Order as the Family Court Act 1997 (WA) does not make provision for de facto couples to divide their superannuation interests. But the Court will consider the superannuation of de facto couples as a relevant financial resource that will be available to them in the future when they retire.

Each party’s access to financial resources is a relevant consideration when the Court assesses the just and equitable division of assets. If one party has significantly greater financial resources (including superannuation) than the other party then the Court may make an adjustment so that the other party receives more of the non-superannuation net asset pool to account for the difference. This is because one of the intentions of a property settlement is to place both parties on as equal a footing as possible to recover financially from the separation.

Married couples :

If you are married you and your partner can split your superannuation interests. A division of superannuation is known as a superannuation split and involves a portion of one party’s superannuation being ‘split’ to the other party either into an account with the same fund in the name of the other party or rolled out into the other party’s own super fund. For married couples unless there are specific reasons not to do so, such as you agree to each retain your own superannuation or your relationship was a short one or one party accrued a significant amount of superannuation prior to the commencement of the relationship, the parties’ superannuation entitlements are commonly equalised. If the parties agree to divide their superannuation interests this needs to be done either by Court order or a superannuation agreement.

Both married and de facto couples are required to comply with obligations for full and frank disclosure which means superannuation interests must always be disclosed when negotiating a property settlement.

If you have separated from your partner and wish to obtain advice about property settlement or have specific questions about your entitlement to your former partner’s superannuation please contact our office on (08) 9211 5800 to make an appointment with one of our family lawyers.

For further information or assistance with your legal issue contact us

On August 1, 2017, the Relationships Register commenced in South Australia, giving greater legal recognition to LGBTQI and de facto relationships. To find out how the Register impacts your will click here.