Splitting super for WA de facto couples: how it works since 28 September 2022

For years, a de facto couple separating in Western Australia could not split superannuation. The court could take super into account and give the other partner more of the house or the savings instead, but it could not order a fund to move money from one partner's account to the other's. Married couples, and de facto couples in every other state, could.

That changed on 28 September 2022. Since then a WA de facto couple can split super by agreement or by court order. Many people in Perth still believe they cannot.

Why super is different for WA de facto couples

WA has kept de facto property under its own law, Part 5A of the Family Court Act 1997 (WA). Superannuation is governed by Commonwealth law, so splitting it needed a Commonwealth power. WA referred one narrow power to the Commonwealth, superannuation of de facto partners, and the Commonwealth added Part VIIIC to the Family Law Act 1975 (Cth). Both laws commenced on the same day.

The result is that a WA de facto property case runs under two Acts at once:

(a) the house, cars, savings, debts and businesses under Part 5A of the WA Act; and

(b) the superannuation under Part VIIIC of the federal Act.

Both are heard together in the Family Court of Western Australia. A married couple in WA is not affected by any of this. Their super is split under Part VIIIB of the Family Law Act, as it is everywhere else.

The tests the court applies

Part VIIIC sets its own gates, written to match the WA Act. Before it splits super the court must be satisfied of the following.

(a) Residence. At least one of you was a WA resident when the case was filed. In addition, you each lived in WA for a third or more of the relationship, or the applicant's substantial contributions were made in WA (s 90YZB).

(b) The relationship. It lasted two years or more. If it was shorter, the court needs a child of the couple and serious injustice to the parent caring for them without a split, or substantial contributions by the applicant and serious injustice to them without one (s 90YZC).

(c) Fairness. The order is just and equitable, taking into account the orders made about the rest of the property under the WA Act (s 90YZD).

The time limit

The deadline is two years after the relationship ended (s 44(7)). If it has passed, the court can give leave only if refusing would cause hardship to you or a child (s 44(9)). There is no separate ground based on needing a pension or benefit. Because the rest of the property claim under the WA Act has the same two-year limit, the two run together.

Splitting by agreement

You do not need a court case to split super. There are two ways to do it by agreement.

(a) Consent orders. You agree, and the court makes orders that include the split. Before the draft orders are lodged, each fund must be given written notice of the proposed split at least 28 days beforehand (r 168 of the Family Court Rules 2021 (WA)). The fund can raise problems with the wording, and an order the fund cannot implement is of little use.

(b) A financial agreement. A superannuation agreement for a WA de facto couple must be part of a WA financial agreement under s 205ZPA of the WA Act (s 90YK). That agreement must meet the WA signing and advice rules, which differ from the federal ones.

Finding and valuing the super

You cannot split what you cannot find. Two tools help.

(a) The ATO search. Once a property case is on foot, a party can ask the court to obtain the other party's super details held by the Australian Taxation Office (s 90YZY). In WA the request is made through the court's eCourts Portal. The ATO's answer names the fund and the last reported balance, which may be some months old.

(b) The fund's own figures. A party, a spouse or someone intending to make a superannuation agreement can ask a fund for information about an interest (s 90YZR). The request goes with a declaration in the form the court provides. The fund may charge a fee, which the person asking pays.

Defined benefit schemes, common for public servants, police and defence members, are valued differently, and sometimes an actuary is needed. Self-managed funds usually need an accountant.

What cannot be split

Small interests cannot be split at all. Under the Family Law (Superannuation) Regulations 2025 (Cth) s 14, an accumulation interest with a withdrawal benefit under $10,000 is unsplittable, as is a non-commutable pension or annuity paying under $4,000 a year. Those interests are dealt with by adjusting the other property instead.

Disclosure is a statutory duty for the super part

Since 10 June 2025, s 90YJA has imposed a duty of full and frank disclosure on the parties to a Part VIIIC case, including while preparing for one. The duty covers the superannuation issues. For the rest of a WA de facto property case the duty comes from the court's rules, not a statute. In practice you should disclose everything either way.

How the split happens

A split usually works in one of two ways. A base amount split moves a fixed dollar figure. A percentage split moves a share of the account, so both of you share market movements until it is processed. The money stays in super and is preserved until the person receiving it meets a condition of release. Where a value cannot sensibly be fixed yet, the court can instead "flag" the interest so the fund cannot pay it out without the court's leave (s 90YZ).

If you separated before 28 September 2022, or your relationship ended near that date, ask a lawyer whether a split is available in your case before you plan around it.

This article is general information about the law in Western Australia as at 27 October 2026. It is not legal advice about your situation.