When dealing with a financial matter in the Family Court of Western Australia, the nature of superannuation and how it is treated is different depending whether you and your former partner were married or in a de facto relationship.
The current law prevents partners in Western Australia who were in a de facto relationship from splitting their superannuation between them. The parties’ superannuation entitlements are still taken into account, and are treated as a financial resource. Western Australia is the only state or territory where de facto couples are treated differently to married couples in relation to superannuation. This is likely to change in the future, although it is unclear when the new law will come into effect.
Parties who were married may be able to divide their superannuation between them, using “superannuation splitting orders”. Superannuation entitlements are able to be treated as property of married parties and are able to be split between separating parties at the time of a property settlement. Part VIIB of the Family Law Act 1975 (Cth) (“FLA”) contains information in relation to the superannuation splitting scheme.
Parties may seek orders to divide a person’s interest in an eligible superannuation plan. An eligible superannuation plan means any of the following:
The Trustee includes an RSA or eligible annuity provider and any person who manages the particular plan.
If you require information about your former spouse’s superannuation entitlements, you may wish to complete a Form 6 from the Superannuation Information Kit.
Section 90XT of the FLA identifies three different types of superannuation splits, so that the non-member spouse receives:
Before the Court can make a superannuation splitting order, the Trustee of the fund must be given notification of the proposed orders. That means that parties must send a copy of the proposed orders to the superannuation fund not less than 28 days before they file their Application for Consent Orders, or the Court hearing where the judicial officer is being asked to make the orders. Ordinarily, the superannuation fund will respond within 28 days of receiving the draft orders.
If any changes are required, the parties must amend the proposed orders and send them back to the fund for approval again.
If no changes are required, the superannuation fund will send a letter advising that they do not object to the orders as drafted. A copy of that letter must be filed at the Court.
If the superannuation fund have not responded after 28 days, parties are entitled to assume that the Trustee does not take any issue with the drafting of the orders. Parties should file their proposed orders, along with a copy of the correspondence sent to the fund, and include a note that no response has been received.
The following is an example of a basic set of orders that may be approved by an industry superannuation fund (this does not include self-managed superannuation funds) for a superannuation split of a specific dollar amount. Parties must check specifically with each fund whether they would approve the proposed orders using the process set out above.
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Last updated: 13-Oct-2021
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