If you are in a de facto relationship – after separation, your ex partner is is entitled to make a claim for your superannuation for up to 2 years post the separation date.
The Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 commenced on 28 September 2022. It allows de facto couples in Western Australia to split their superannuation when dividing their property after a relationship breakdown.
The superannuation splitting laws allow separating couples to value and divide their superannuation after a relationship break down. Under the laws, one partner may split the amount remaining in their superannuation fund and make a payment to the other partner's superannuation fund after separation.
Is a de facto partner a spouse? Under the Family Law Act, your de facto partner is treated in an almost identical way to a married spouse. At the end of the relationship, you might still be liable or be entitled to spousal maintenance or a property split in your favour, just like a marriage.
Once you've been together for 6 months, your new partner can take half! Once you've been together for 6 months, your new partner can take half!
One of the most effective methods of protecting assets in a de facto relationship is creating a Binding Financial Agreement (BFA) with your partner, which can be entered into at any point during the relationship or even during the process of separation.
If the relationship has lasted at least three years, the general rule is that relationship property is divided equally between the couple.
De facto rights in NSW are the same as married couples' rights when it concerns property settlement. In that, de facto couples can apply in court, and seek entitlements following separation – much like divorced couples.
No, unmarried couples do not share the rights, responsibilities, protections, or status held by married couples. This is the case whether or not they live together. Cohabiting couples retain their individual assets when they separate irrespective of the financial situation of either party.
Importance of Seeking Legal Advice
Two years is generally the minimum period for a couple who lives together to be considered a de facto relationship.
The amount will be 15% of the gain with a 33.33% discount applied for assets held for more than 12 months, bringing it down to 10%. This will impact the benefits of both members as the fund will need to factor in the tax prior to paying benefits out of the SMSF.
De facto relationship entitlements in a breakup
The laws for a de facto relationship mean that joint assets can be pooled together and divided. Separating your lives and dividing your assets does not need to be done in court if you can agree on a fair division of assets.
What will happen to my super during a divorce or separation? Essentially, super is considered as property in the event of a relationship breakdown, so like any other asset it can be divided between partners by agreement or court order. This includes marriage or de facto relationships, both heterosexual or same sex.
Your employer is not required to make super contributions if you're: paid to do work of a private or domestic nature for 30 hours or less each week. a non-Australian resident and you're paid to do work outside Australia. an Australian resident paid by a non-resident employer for work done outside Australia.
Under the superannuation guarantee, employers have to pay superannuation contributions of 10.5% of an employee's ordinary time earnings when an employee is: over 18 years, or. under 18 years and works over 30 hours a week.
Living together without being married or being in a civil partnership means you do not have many rights around finances, property and children. Consider making a will and getting a cohabitation agreement to protect your interests.
In NSW, Victoria, South Australia, Western Australia and the Northern Territory separating from your de facto partner will not change your Will and any gift in your Will to your ex-de facto could still be valid, despite the fact that you have separated and divided up your assets.
Under intestacy laws, a de facto partner has the same entitlements when their partner dies as a legally married spouse. De facto partners are required to prove that the relationship existed for at least the last two years and existed at the time of the death.
Generally speaking, the next of kin will be the deceased person's surviving spouse (i.e., husband or wife), their de facto partner or their parents. Under NSW's Property (Relationships) Act 1984, a de facto relationship is a relationship where two adult persons, who are unmarried, live together as a couple.
In the breakdown of any marriage or defacto relationship, the law gives to each of the spouses the right to apply for a Court Order that will force the other spouse to exit and remain away from the family home.
You must apply for de facto financial orders within two years of the breakdown of your relationship. After this time you need the Court's permission to apply.
Do You Have Any Property Rights If You Are Not Married? Each partner generally keeps whatever property they brought into the relationship, along with anything that they earned or bought during the relationship. Jointly owned assets, however, are typically split 50-50.
There are also other jurisdictions where there are grounds to take action against a third party who engages in adultery with a party to a marriage, such as some states of the United States of America, however this is not the case in Australia.