In this guide
Over the years Australia has seen some momentous changes in the treatment of same-sex and de facto relationships when it comes to superannuation benefits.
For many years, same-sex couples and families were treated differently to other couples and families when it came to the rules governing income tax and superannuation law. Two people of the same gender in a relationship were not legally considered spouses or de factos and were not entitled to receive their partner’s super benefits.
All that has changed now, with the final hurdle removed in September 2022 when new legislation in Western Australia levelled the playing field for de facto couples around the country.
The change means the treatment of separating de facto couples – including same sex couples – in WA is now aligned with the rules in all the other states and territories in Australia. Previously, de facto couples in WA were not permitted to split their super benefits as the Family Court of WA was unable to make an order splitting the superannuation assets of de facto couples.
The changes to the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 commenced on 28 September 2022, meaning all married and de facto couples in Australia are now treated equally under the law in respect of their ability to divide their property – including their super – following separation.
Need to know: As both same-sex and opposite-sex couples are recognised under super law, SuperGuide articles apply equally to readers whatever their sexual identification or marital status.
Background to same-sex super reforms
Under the rules in place until 2004, same-sex couples had fewer rights than heterosexual couples within the super system, as two people of the same gender in a relationship were not legally considered to be spouses or de factos.
The rules at that time also meant same-sex partners were considered non-dependants and were required to pay 31.5% tax on any super death benefits they received when their partner passed away. Partners in a heterosexual couple, however, were considered dependants under super law and received their benefit tax free.
