Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Commencement Proclamation 2022

Overview

The Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 was enacted to address specific gaps in the existing family law framework, particularly concerning the division of superannuation benefits and bankruptcy considerations for de facto couples in Western Australia. This legislation was introduced to ensure that de facto relationships in Western Australia are treated in a manner consistent with other states and territories in Australia, where similar laws are already in effect. The Act was passed by the Australian Parliament and received royal assent, setting the stage for a more equitable treatment of de facto couples in financial and legal matters. The policy objective of this Act is to provide a fair and just resolution of financial disputes for de facto couples, ensuring that the principles of equality and fairness are upheld in family law proceedings. The Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Commencement Proclamation 2022, signed by the Governor-General, officially commenced the Act on 28 September 2022, ensuring that the new provisions are enacted and in force.

Scope and Application

The Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020, which was brought into effect by the F2022N00206 (Notifiable instrument), applies to de facto couples in Western Australia who are seeking a property settlement under the Family Law Act 1975. This legislation introduces the ability to split superannuation benefits in the case of a relationship breakdown, an aspect which was previously not possible under the existing family law framework in Western Australia. The commencement of the Act on 28 September 2022 signifies the extension of these rights to de facto couples in that state, thereby aligning the legal treatment of superannuation splitting in de facto relationships with that of married couples across Australia. The Act does not specify any exclusions or exemptions; however, it should be noted that its application may be extended or restricted through subordinate instruments as deemed necessary by relevant authorities.

Key Provisions

The Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 introduces significant changes to family law in Western Australia, particularly concerning de facto superannuation splitting and bankruptcy. Section 1 of the Act (1) stipulates that the entire Act commences on 28 September 2022. This date was proclaimed by the Governor-General under the authority of the Act and is set forth in the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Commencement Proclamation 2022 (F2022N00206). The operative sections of the Act primarily address the splitting of superannuation benefits for de facto couples upon separation and the treatment of bankruptcy in family law matters. Section 90AB (2) of the Family Law Act 1975 is amended to allow for the division of superannuation benefits for de facto couples who have been in a relationship for at least two years. This is a significant shift from the previous requirement of a three-year relationship for married couples. Additionally, Section 90SF (3) now permits the consideration of a de facto couple's superannuation interests in property settlements, aligning the treatment of de facto relationships with that of married couples. The Act imposes specific obligations on the parties involved in de facto relationships. For example, it mandates that both parties must provide full disclosure of their superannuation interests when applying for property settlements or other financial orders. Furthermore, financial agreements entered into by de facto couples must now include provisions for the potential division of superannuation benefits. This ensures that any pre-nuptial or financial agreements are comprehensive and legally enforceable under the new provisions. Failure to comply with the requirements of the Act can lead to various legal consequences. While the Act itself does not explicitly outline offences or penalties, breaches of family law provisions, such as non-disclosure of assets or failure to adhere to court-ordered property settlements, can result in civil or criminal penalties under the Family Law Act 1975. These penalties can include fines, imprisonment, or other sanctions deemed appropriate by the court. The severity of the penalty often depends on the nature and extent of the breach, with maximum penalties available for significant or repeated violations.