Why De Facto Couples In WA Face Different BFA Rules

De facto couples in WA face different binding financial agreement rules because Western Australia is the only state that never handed its de facto financial powers to the Commonwealth.

Their agreements are made under Part 5A of the Family Court Act 1997 (WA) instead of the Family Law Act 1975.

That one difference changes which section the agreement must be made under, what it is allowed to cover, and which national reforms reach you.

The gap grew wider in June 2025, and it is an easy difference to miss until an agreement is already signed.

Why Do De Facto Couples In WA Follow A Different Law?

Western Australia kept its own de facto financial laws when every other state referred theirs to the federal government.

The federal de facto property system began on 1 March 2009 for most of the country, and on 1 July 2010 in South Australia, but WA stayed outside it.

It generally covers relationships that broke down on or after those dates, and the Commonwealth did not need a referral from the ACT or the Northern Territory because it could already legislate for the territories.

As the Australian Institute of Family Studies records, all states except Western Australia referred the relevant powers to the Commonwealth, which is what led to Part VIIIAB of the Family Law Act.

So a de facto couple in Fremantle and a de facto couple in Adelaide are working under two different Acts, two different sets of section numbers, and two different sets of reforms.

Which Act Applies To Your Agreement?

If you are a de facto couple based in Western Australia, your agreement is made under Part 5A of the Family Court Act 1997 (WA) rather than the Family Law Act.

Which regime applies can need specific advice where a relationship has spanned more than one state.

Part 5A gives you three options depending on timing.

Section 205ZN covers an agreement made before you begin living together, section 205ZO covers an agreement made during the relationship, and section 205ZP covers an agreement made after it ends.

These three sections do the same job for WA de facto couples that sections 90UB, 90UC and 90UD do elsewhere in Australia.

The WA headings themselves point to sections 90B, 90C and 90D of the Family Law Act, because Part 5A was drafted from the married couple provisions years before the federal de facto rules existed.

Does This Affect Married Couples In WA?

No, married and engaged couples in Western Australia are treated the same as everywhere else in the country.

They make their agreements under Part VIIIA of the Family Law Act 1975, using sections 90B, 90C and 90D.

The Family Court of Western Australia hears both kinds of case, but it wears two hats: federal jurisdiction for married couples and state jurisdiction for de facto couples.

The practical effect is that a couple who live together, then marry, can move from one legal system to the other without anything visible changing in their household.

How Do The Rules Compare Across Australia?

The clearest way to see the difference is to line up the three positions side by side: a de facto couple in WA, a married couple in WA, and a de facto couple anywhere else in Australia.

The two rows that catch people out are the last two.

Superannuation splitting was closed off to WA de facto couples until late 2022, so an agreement signed before then could not include a binding split of a superannuation interest.

The June 2025 reforms are the newer problem, because they changed how courts across the country approach property, and WA de facto couples were left out of that change.

What Makes A De Facto Financial Agreement Binding In WA?

An agreement becomes binding under section 205ZS of the Family Court Act 1997 (WA), which the Act itself records as the state version of section 90G of the Family Law Act.

In broad terms, the agreement must be in writing and signed by both partners, and each partner must have received independent legal advice before signing.

That advice has to deal with the effect of the agreement on that person’s rights, and with the advantages and disadvantages of making it at the time the advice is given.

The Act also sets out how that advice must be evidenced in the agreement itself, and how the signed document must be provided to each partner, and those formalities are applied strictly.

The agreement must also not have been terminated or set aside.

On top of that, Part 5A requires the agreement to be expressed to be made under the relevant section, and requires that no other agreement is already in force between you on the same matters.

Why Does The Agreement Have To Name The Right Section?

Sections 205ZN, 205ZO and 205ZP each require the agreement to state that it is made under that particular section.

This is where documents drafted from national templates run into trouble, because a template written for the rest of Australia will cite the Family Law Act sections instead.

An agreement that names the wrong Act, or the wrong stage of the relationship, risks not being a Part 5A financial agreement at all.

It is a small drafting point with a very large consequence, and it is one of the main reasons WA de facto couples should not rely on an off-the-shelf document.

When Can A Court Set Aside A WA De Facto Agreement?

The Family Court of Western Australia can set aside a de facto financial agreement under section 205ZV, which the Act records as the state version of section 90K of the Family Law Act.

Grounds added to that section over the years include an agreement entered into to defraud or defeat a creditor, or made with reckless disregard for a creditor’s interests.

A further ground was added in 2022 covering a payment flag operating on a superannuation interest where there is no reasonable likelihood the flag will be lifted.

How the agreement was reached also matters a great deal, which is the lesson of Thorne v Kennedy [2017] HCA 49.

In that case the High Court set aside two agreements made under the federal Act, with all judges agreeing they were voidable for unconscionable conduct and a majority also finding undue influence.

The woman in that case had signed shortly before her wedding despite being advised against it, which shows that getting independent legal advice does not on its own rescue an agreement signed under pressure.

Can A WA De Facto Agreement Deal With Superannuation?

Yes, but only for agreements dealing with super from 28 September 2022 onwards, because that is the day WA de facto couples were finally brought into the superannuation splitting system.

The change came from the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020, which was passed in 2020 but did not commence until that date in 2022, working together with the Family Court Amendment Act 2022 (WA) on the state side.

Section 205ZPA now allows a financial agreement to deal with superannuation interests as if they were property.

Before this, superannuation could be recognised as a financial resource for WA de facto couples, but it could not be split between them the way it could for married couples.

How Does The Superannuation Part Actually Work?

The superannuation part of a WA de facto agreement runs on federal rails even though the rest of the agreement is a state document.

Section 90YK of the Family Law Act provides that a superannuation agreement has effect only in accordance with Part VIIIC of that Act, and that it cannot be enforced under the Family Court Act 1997 (WA).

There is also a timing rule for couples who sign before moving in together, because a superannuation agreement made in contemplation of a de facto relationship has no effect unless and until the parties actually enter that relationship.

A separation declaration is needed as well before certain provisions can take effect, which is dealt with in section 205ZPB.

Should You Review An Older Agreement?

If your agreement was signed before 28 September 2022, it cannot contain a superannuation split, because that option did not exist for WA de facto couples at the time.

For couples with meaningful super balances, that means the agreement cannot itself produce a binding split of the superannuation, even if it recognised super as a financial resource.

Reviewing an older agreement does not mean starting again from scratch, and in many cases it is a matter of replacing it with a fresh agreement that covers what the old one could not.

Do You Need Two Years Together Before You Can Make An Agreement?

No, the two year rule is a gate on going to court, not a gate on making an agreement.

Under section 205Z, the Family Court of Western Australia can only make property orders for de facto partners if it is satisfied of one of a small number of things.

Those are set out by the Family Court of Western Australia as follows:

• the partners lived in a de facto relationship for at least two years
• there is a child of the relationship under 18 and failing to make orders would cause serious injustice
• the partner applying made substantial financial, non-financial or homemaker contributions and failing to make orders would cause serious injustice

An agreement under section 205ZN can be signed before you have lived together at all, which is precisely the point of making one early.

How Long Do You Have To Apply To A Court In WA?

A former de facto partner in Western Australia has two years from the end of the relationship to apply for property orders under section 205ZB.

That period was originally one year and was extended to two years in 2006, bringing it into line with the rest of the country.

The court can allow a late application in limited circumstances, including where it is satisfied that hardship would be caused if leave were refused.

A binding agreement takes the pressure off that deadline for the matters it validly covers, because it settles the position in advance rather than leaving it to a date neither of you may be thinking about.

What Connection To WA Does Your Relationship Need?

Part 5A applies where the relationship has a genuine connection with Western Australia, which section 205X deals with under the heading “People to whom this Part applies”.

The Family Court of Western Australia sets out two things that both have to be met: at least one partner must be residing in Western Australia on the day the application is made, and either both partners resided in the state for at least one third of the relationship or substantial financial, non-financial or homemaker contributions were made while residing there.

It matters more than most couples expect in a state with a large fly-in fly-out workforce.

If you split your time between WA and another state, this is worth raising with a lawyer before your agreement is drafted rather than after.

What Did The June 2025 Property Reforms Mean For WA De Facto Couples?

They did not apply to them, and that remains the position.

The Family Law Amendment Act 2024 brought in significant property changes that commenced on 10 June 2025, including a requirement for courts to consider the economic effect of family violence, a codified decision making process, a statutory duty of disclosure, and specific rules about companion animals.

The Attorney-General’s Department describes these as changes to the Family Law Act framework, which is the federal Act.

When the Family Court of Western Australia announced the changes, it confirmed they applied to “property cases concerning parties who were, or are, married” and said it was expected that the state Family Court Act would also be amended to mirror the changes.

Why Does That Gap Matter To You?

It means a WA de facto couple and a WA married couple who separate on the same day are assessed under two different frameworks.

The married couple’s case is decided under the reformed federal provisions, while the de facto couple’s case is decided under Part 5A in its existing form.

For couples who would rather not have their outcome depend on which reforms have reached which Act, an agreement is one way to reduce that uncertainty.

It lets you set the terms while you are both comfortable, instead of waiting to see how the law lands years later.

What Else Should WA De Facto Couples Keep In Mind?

The most common practical issues are about honesty, timing and paperwork rather than anything exotic.

Full and frank disclosure of assets, debts and financial resources matters a great deal, because an agreement built on an incomplete picture is far easier to challenge later.

Timing matters too, and an agreement raised calmly and early is worth more than one produced at short notice.

How Many People Does This Actually Affect?

At the 2021 Census, 230,618 people in Western Australia aged 15 and over were in a de facto marriage, which was 12.2 per cent of that population.

Across the country, the Australian Bureau of Statistics recorded 2,168,351 people in a de facto relationship at the same Census.

Living together is now an ordinary way to build a life together, and de facto couples carry real financial consequences whether or not they ever marry.

The rules that apply to those consequences in WA are simply not the same rules that apply in the rest of Australia.

Get Help With A De Facto Financial Agreement In WA

De facto couples in WA face different BFA rules because their agreements sit under the Family Court Act 1997 (WA), which sets its own sections, its own time limits, and its own set of reforms.

Getting the agreement drafted under the right Act from the start is what makes it hold.

As de facto financial agreement lawyers in Western Australia, my law firm can prepare an agreement that is built for the WA rules rather than adapted from a national template.

Contact my law firm today by calling 1300-529-888.

Frequently Asked Questions

Can a de facto couple in WA use a standard Australian BFA template?

No. A template drafted for de facto couples outside WA under sections 90UB, 90UC or 90UD of the Family Law Act 1975 is not suitable for a Western Australian agreement. A WA de facto agreement must be expressed to be made under section 205ZN, 205ZO or 205ZP of the Family Court Act 1997 (WA).

Do de facto couples in WA have to live together for two years first?

No. The two year requirement in section 205Z applies to asking a court for property orders, not to making a financial agreement. A couple can sign an agreement under section 205ZN before they begin living together. Courts can also make orders in shorter relationships involving a child under 18 or substantial contributions, where refusing would cause serious injustice.

Can a WA de facto financial agreement split superannuation?

Yes, but the option only opened on 28 September 2022, when the Commonwealth and Western Australian changes commenced together. Section 205ZPA of the Family Court Act 1997 (WA) lets an agreement treat superannuation interests as property, and that part of the agreement operates under Part VIIIC of the Family Law Act.

How long do de facto partners in WA have to apply for property orders?

Two years from the date the de facto relationship ended, under section 205ZB of the Family Court Act 1997 (WA). Applications made after that period need the court’s leave, which is available in limited circumstances, such as where hardship would otherwise be caused. A binding financial agreement avoids the deadline by settling matters in advance.

Did the June 2025 family law property changes apply to WA de facto couples?

No. The Family Law Amendment Act 2024 changes that commenced on 10 June 2025 apply to married couples and to de facto couples outside Western Australia. WA de facto property matters stay under Part 5A of the Family Court Act 1997 (WA). The state court said at the time that the WA Act was expected to be amended to match.