New legislation brings long-awaited reform for WA de facto couples

Western Australia can often be seen as “behind the times” in comparison with the Eastern States, and up until recently that was certainly true for de facto couples and their rights.

Under WA law, the rights of separated couples are governed under two pieces of legislation. Married couples fall under the Federal legislation, The Family Law Act 1975, while de facto couples fall under the State legislation, The Family Court Act 1997.

State legislation echoes Federal legislation for the most part. What applied to married couples also applied to de facto couples, except in the case of superannuation.

Under State legislation, if a de facto West Australian couple separated in WA, their superannuation balances would not be counted as an asset for the purpose of determining and dividing property between them.

This legislation applied to all WA de facto couples, regardless of relationship length, sexual orientation, or the size of the assets between them.

Inequality was created between the rights of de facto and married couples where asset pools were small and superannuation was the main asset.

This approach has, for decades, created a disproportionate effect on women, who generally have smaller superannuation balances in comparison to their male counterparts, often as a result of being out of the workforce to have and raise children.

The approach has also had a knock-on effect for WA same-sex couples, who were afforded less rights than other same-sex couples in the rest of Australia.

In order to address this disparity of assets, the WA Government passed legislation in September 2022 to re-align WA with the rest of the country. As a result, de facto couples are now able to include superannuation in the division of their property after separation.

The change was a much-welcome and overdue significant legal reform for WA.

Catherine Cousins is a senior lawyer at Greenstone Legal.