De facto couples in Western Australia have been able to split superannuation since 28 September 2022, when Part VIIIC of the Family Law Act 1975 (Cth) began to apply to them.
Before that date, WA was the only place in Australia where a separating de facto partner’s superannuation could not be divided by a court order or a binding agreement.
The main gap is now closed, but several narrower ones remain.
Those remaining gaps still catch people out, often years after the relationship ended.
This article sets out what WA de facto partners can do with superannuation today, and where the law still leaves people short.
Can De Facto Couples in WA Split Superannuation?
Yes.
Since 28 September 2022, de facto partners in Western Australia can divide superannuation as part of a property settlement, either by court order or by written agreement.
The rules sit in Part VIIIC of the Family Law Act 1975 (Cth), which the Family Court of Western Australia applies to de facto cases.
Part VIIIC was inserted by the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 (Cth), which took effect on 28 September 2022.
It covers interests in superannuation funds, approved deposit funds, retirement savings accounts, small superannuation accounts and superannuation annuities, which are the same categories available to married couples.
What Was the Gap Before 28 September 2022?
Before that date there was no mechanism that allowed a WA de facto partner’s superannuation to be moved into the other partner’s name.
Western Australia is the only state that has not referred de facto financial matters to the Commonwealth, so de facto property in WA is dealt with under the Family Court Act 1997 (WA) rather than the Family Law Act 1975 (Cth).
Superannuation splitting is a federal scheme, and until 2022 it did not reach WA de facto couples at all.
A court could take one partner’s superannuation into account when dividing the rest of the property, but it could not order the fund to pay any part of it to the other partner.
That produced a harsh result in a very common situation: where one partner held a large superannuation balance and the couple owned little else, there was often nothing available to balance the ledger.
The partner with the smaller balance carried the loss.
What Can You Actually Do Under Part VIIIC?
Part VIIIC gives WA de facto partners three tools: a splitting order, a flagging order, and a superannuation agreement.
A splitting order under section 90YY gives the other partner an entitlement to part of each payment that becomes payable from the interest, worked out as a base amount or as a percentage.
A flagging order under section 90YZ stops the trustee from making a payment from the interest without the Court’s leave until the flag is lifted, which helps when the value is about to change or is hard to fix.
A superannuation agreement under section 90YK lets partners deal with superannuation inside a written financial agreement, without filing a case.
Before consent orders are filed or a hearing takes place, the trustee must be given at least 28 days’ notice of the proposed orders, and the Court must determine the value of the member’s interest before it makes a splitting order.
What Gaps Are Still Left for WA De Facto Partners?
This article focuses on three continuing complications: settlements that were already locked in before the scheme started, the divide between state and federal law, and the two year deadline that applies to a late application.
None of them is obvious from the outside, and each one can cost a partner a share of one of the largest assets in the relationship.
The table below compares how the rules apply depending on whether you married and where you separated.
| De facto partners in WA | De facto partners elsewhere in Australia | Married couples in WA | |
| Law that governs property division | Family Court Act 1997 (WA) | Family Law Act 1975 (Cth) | Family Law Act 1975 (Cth) |
| Law that governs superannuation splitting | Family Law Act 1975 (Cth), Part VIIIC | Family Law Act 1975 (Cth), Part VIIIB | Family Law Act 1975 (Cth), Part VIIIB |
| Where the case is heard | Family Court of Western Australia | Federal Circuit and Family Court of Australia | Family Court of Western Australia |
| Covered by the property changes made by the Family Law Amendment Act 2024 | Partly. Not for property under the WA Act, but the Part VIIIC superannuation rules were amended | Yes | Yes |
The table shows the awkward part of the WA position.
Superannuation splitting is federal, while everything else about a WA de facto property settlement is state law, so a single case runs on two statutes at once.
Does the Scheme Apply If You Separated Before 28 September 2022?
In most cases, yes.
The scheme is not limited to couples who separated after that date, because section 90YX applies to all de facto relationships, including those that had already ended when it commenced.
There are two exceptions to that, and both turn on whether the property had already been dealt with.
The scheme does not apply if a final property order, other than an interim order, was in force on 28 September 2022 under section 205ZG of the Family Court Act 1997 (WA) or section 90SM of the Family Law Act 1975 (Cth).
It also does not apply if a WA de facto financial agreement was in force on that date.
Either exception can fall away later, because the scheme becomes available if the earlier order is set aside, or if the earlier agreement is terminated or set aside.
The people shut out are therefore those whose settlement was already locked in, not those who simply separated early.
Why Does It Matter That WA De Facto Property Is Decided Under State Law?
It matters because reforms to the Family Law Act 1975 reach WA de facto couples only in part.
The Family Law Amendment Act 2024 (Cth) changed the way property is divided from 10 June 2025.
It did not amend the Family Court Act 1997 (WA), which still governs how a WA de facto couple’s ordinary property is divided.
It did amend section 90YZD in Part VIIIC, so in a WA de facto superannuation case the Court must now consider:
- the effect of family violence on a partner’s ability to contribute
- the effect of family violence on a partner’s current and future circumstances
- the housing needs of a child in a partner’s care
- property wasted intentionally or recklessly
- the nature and circumstances of each partner’s liabilities
The practical result is a split screen.
A WA de facto partner gets those considerations when the Court deals with superannuation, but not when it divides the house, the savings and everything else.
Married couples in WA get them across the whole settlement, because their property runs under the federal Act.
Two couples in the same suburb, who separated in the same month, can therefore have the rest of their property divided under different rules depending on whether they married.
What If You Are Past the Two Year Deadline?
An application for a superannuation splitting order should be made within two years after the de facto relationship ends.
If that period has passed, an application can still be made where both former partners consent to it.
Without that consent, you need the Court’s leave, which may be granted where refusing it would cause hardship to you or to a child.
The Court must also be satisfied that the relationship lasted at least two years, or that a shorter relationship meets one of the exceptions.
The child exception applies where there is a child of the relationship and refusing an order would cause serious injustice to the partner caring for, or responsible for, that child.
The contributions exception applies where a partner made substantial contributions and refusing an order would cause serious injustice to that partner.
There is a residence test as well, since one or both partners must have been living in WA when the application was made, and either both must have lived in WA for at least a third of the relationship or the applicant must have made substantial contributions in WA.
The deadline bites harder here than it does elsewhere, because the superannuation scheme only opened in September 2022.
Someone who separated in 2019 and never formalised a settlement after separation is well outside the two year window, and would need consent or leave to start now.
Dealing with superannuation while the relationship is ending is far simpler than arguing about it years afterwards.
How Is Superannuation Divided in a WA De Facto Settlement?
There is no automatic entitlement to half of a partner’s superannuation, and the Court starts from a different question.
It must first be satisfied that it is just and equitable to alter the existing property interests at all.
The High Court made that point in Stanford v Stanford [2012] HCA 52, where it held that the fact of separation does not on its own justify an order changing who owns what.
If that threshold is met, the Court identifies and values the property, including the superannuation interest, assesses the contributions each partner made, considers their future circumstances, and decides what division is just and equitable.
A superannuation split is one of the tools available at the end of that process, rather than the starting point.
Does a Superannuation Split Give You Cash?
No.
Money split from one superannuation interest to another stays inside the superannuation system.
The receiving partner can only draw on it once they meet a condition of release, which usually means reaching preservation age and retiring, or turning 65.
A house and a superannuation split of the same nominal value are therefore not equivalent in practice, because they differ in liquidity, tax treatment and when they can be accessed.
One partner has an asset they can live in or sell today, while the other has an asset they may not touch for years.
How Is a Superannuation Interest Valued?
Most interests are valued using the methods set out in the Family Law (Superannuation) Regulations 2025, which replaced the 2001 regulations on 1 April 2025 and give effect to both Part VIIIB and Part VIIIC.
For an accumulation interest, the value is usually close to the account balance shown on a member statement.
For a defined benefit interest, such as a state government or military scheme, the value is worked out by formula and can be very different from the balance a member sees.
Self managed funds add a further layer, because the fund’s own assets have to be valued and a split can affect how the fund operates.
Getting the valuation wrong at the start tends to produce a settlement that is wrong at the end.
Can a Financial Agreement Deal With Superannuation in WA?
Yes.
A de facto financial agreement made under the Family Court Act 1997 (WA) can include a superannuation agreement under section 90YK of the Family Law Act 1975 (Cth), which binds the trustee of the fund in the same way a court order does.
That gives WA de facto couples a private route to a superannuation split, without filing a case or asking a judge to decide.
Both partners need their own independent legal advice before signing, and the agreement has to be prepared carefully to be enforceable.
The High Court’s decision in Thorne v Kennedy [2017] HCA 49 is a reminder of what is at stake, since the agreements in that case were set aside for unconscionable conduct after one party signed under heavy pressure.
What Should You Check in an Agreement Signed Before 28 September 2022?
An agreement signed before the scheme started could not include a binding superannuation split, because section 90YK only applies to WA financial agreements made after it commenced.
If you hold a WA de facto financial agreement from that period, the superannuation clauses in it may not do what you assumed they did.
The agreement may treat superannuation as a factor in the overall division without being able to move any of it between funds.
Having the agreement reviewed while the relationship is intact may identify whether it needs to be replaced or updated.
Why Does Superannuation Matter So Much in a WA Separation?
It matters because superannuation is the second largest asset class Australian households hold, after the family home.
In the most recent Australian Bureau of Statistics survey of household wealth, covering 2019-20, superannuation made up 18 per cent of average household assets, at an average of $229,900 per household, second only to the owner-occupied home at 40 per cent.
Total superannuation assets in Australia reached $4,437.9 billion in the March 2026 quarter, on figures published by the Australian Prudential Regulation Authority.
The number of people affected in Western Australia is not small either.
At the 2021 Census, 230,618 people in Western Australia aged 15 and over were in a de facto marriage, which is 12.2 per cent of that age group.
That figure counts people rather than couples, and the scheme only comes into play once a relationship ends, but it shows how many Western Australians now fall under rules that did not exist before September 2022.
Get Help With De Facto Superannuation Splitting in WA
Superannuation splitting is now open to WA de facto couples, but the timing rules, the two year deadline and the divide between state and federal law still catch people out.
As binding financial agreement lawyers in Western Australia, my law firm can prepare an agreement that deals with superannuation properly, at a fixed fee agreed before the work starts.
Call 1300-529-888 to talk through your situation.
Frequently Asked Questions
When did de facto couples in WA get the right to split superannuation?
De facto partners in Western Australia have been able to split superannuation since 28 September 2022, when Part VIIIC of the Family Law Act 1975 (Cth) took effect. Before that date, WA was the only place in Australia where a de facto partner’s superannuation could not be divided on separation. The Family Court of Western Australia applies the scheme.
Can we split superannuation without going to court?
Yes. A de facto financial agreement made under the Family Court Act 1997 (WA) can include a superannuation agreement under section 90YK of the Family Law Act 1975 (Cth), which binds the fund trustee without any court case. Both partners must receive their own independent legal advice before signing for the agreement to work.
Does a superannuation split mean I receive the money now?
No. Money split from one superannuation interest to another stays inside the superannuation system. The receiving partner can only access it once they meet a condition of release, which usually means reaching preservation age and retiring, or turning 65. A superannuation split is therefore very different from receiving cash in a settlement.
What if we separated before 28 September 2022?
The scheme can still apply, because it covers de facto relationships that ended before 28 September 2022. It does not apply if a final property order or a WA de facto financial agreement was already in force on that date, although it becomes available if that order is set aside, or if the agreement is later terminated or set aside.
How long do I have to apply for a de facto property settlement in WA?
You should apply within two years after the de facto relationship ends. After that, you can still apply if both former partners consent, and otherwise you need the Court’s leave, which may be granted where refusing it would cause hardship. The relationship must also have lasted two years, or meet one of the statutory exceptions.