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The YES vote in WA: why it really matters

Congratulations to everyone who today is one step closer to being legally able to marry – the majority of Australians support you.

And if you live in WA it’s a REALLY big step. Not just will you be allowed to get married, you will get the full legal asset protection of married couples.

The thing is, the law in relation to de facto couples is slightly different in WA and that affects people in same-sex partnerships.

In almost every respect people in a de facto relationship – the only legal status currently available to same-sex couples – have the same financial responsibilities to their partners married couples. Any disputes over your children or over property will be treated by law in the same way as for a married couple.

EXCEPT in the case of superannuation

In WA, de facto couples cannot divide superannuation as part of a property settlement.

That’s potentially a really big deal and a significant reason why it is more advantageous to be legally married.

Hetero couples can decide whether they want the protection of marriage or not, same-sex partners currently cannot.

Super laws are a firmly entrenched part of having a job in Australia and a person’s fund can often be their most significant asset.

Superannuation became part of family law in 2002 making it property for the purposes of financial settlement between separated parties. By 2010 every State in Australia had laws that allowed de facto couples, including same-sex couples, to divide their super as part of a property settlement.

Except Western Australia. If you live in WA and have been in a de facto relationship which breaks down, you cannot split your superannuation with your former partner at the time of your property settlement.

If your partner has worked and you have looked after children or managed the household – allowing your partner to grow their account while yours has languished on pre-children or part-time contributions – when you split up what’s yours is yours and what’s theirs is theirs.

That means one party could sell assets and put it into their superannuation – and therefore put it out of  reach of a partner they might be planning to leave.

Of course, if things end up in court and you can prove that’s what has happened, the court can order one party is entitled to a share of the other party’s super.

BUT as the law stands now, such an order only comes into effect when the party with the big account is entitled to receive their superannuation – maybe 20 or 15 years later.

If the couple had been married, the court could order the superannuation is split – it still can’t be accessed until retirement age, but the separated parties each gets their share of the super in their own account in their own name, at the time of settlement.

Not so the de facto couple. When retirement age rolls around the party owed a share under the court order will be relying on their former partner to pay it (the superannuation fund is only obliged to pay it to the account holder).

That account holder may have changed funds, or even started self-managing their super – which could have gone well or badly; the account holder may be living overseas, with no assets in Australia, making an old court order unenforceable.

Either way there is very little guarantee and certainly no security that can be soundly relied on.

Equality for all, at every level.

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Level 1/38 Rowland Street
Subiaco, WA

Contact
hello@brightsidefamilylaw.com.au
(08) 6382 0123

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