Family Court Act 1997 WA: What It Covers and How It Affects De Facto Couples

Why WA Has Its Own Family Law Act

When the Australian states referred their family law powers to the Commonwealth in the 1980s and 1990s, Western Australia kept its state jurisdiction over de facto relationships. The result is the Family Court Act 1997 (WA) — a state statute that gives the Family Court of Western Australia exclusive power to handle de facto property division, maintenance, and (since 2022) superannuation splitting for unmarried couples.

For married couples, the FCWA already exercises federal jurisdiction under the Family Law Act 1975 (Cth). But if you separated from a de facto partner in WA, the Family Court Act 1997 is the legislation that governs your property dispute — not the Commonwealth Act that applies everywhere else in Australia.

What the Act Actually Covers

The Family Court Act 1997 provides the legal framework for:

• De facto property settlement — division of assets, debts, and financial resources between unmarried partners who meet the eligibility threshold
• De facto maintenance — ongoing financial support orders where one partner cannot adequately support themselves
• Superannuation splitting — since the September 2022 amendments, de facto couples in WA can split super the same way married couples can (this was previously unavailable)
• Geographical connection tests — the Act requires that at least one party was ordinarily resident in WA when the relationship broke down, or that the applicant still lives in WA at the time of filing
• Time limits — applications must be filed within two years of the date of separation (compared to 12 months post-divorce for married couples)

The 2022 Super Splitting Amendment

Before 28 September 2022, WA was the only jurisdiction in Australia where de facto couples could not split superannuation directly. Super was treated merely as a "financial resource" — acknowledged but not divisible. This often forced complex offsetting arrangements where one partner kept their entire super balance and the other received the family home or a larger share of cash assets.

The Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2022 changed this. De facto couples separating on or after 28 September 2022 can now obtain superannuation splitting orders under Part VIIIC of the Family Law Act 1975. The same 28-day trustee notification rule applies — you must serve draft orders on the fund trustee at least 28 days before filing with the court.

If you separated before this date, the old rules still apply to your matter — super remains a financial resource only.

Eligibility Requirements Under the Act

Not every relationship qualifies. To access the Act's property and maintenance provisions, you must prove that:

1. A de facto relationship existed (cohabitation, mutual commitment, intermingling of finances, public reputation as a couple)
2. The relationship lasted at least two years, OR there is a child of the relationship, OR one party made substantial contributions and failure to make an order would result in serious injustice
3. At least one party was ordinarily resident in WA when the relationship broke down

The court applies a four-step process similar to the federal system: identify the asset pool, assess contributions (financial and non-financial), consider future needs, and determine whether the proposed division is just and equitable.

How This Affects Your Post-Divorce Admin

If you are a de facto couple separating in WA, the Family Court Act 1997 is your governing legislation — not the national Family Law Act sections that apply to married couples. This distinction matters for:

• Which forms you file (WA eCourts Portal, not the Commonwealth Courts Portal)
• Which time limits apply (2 years from separation, not 12 months from divorce)
• Whether you can split super (only if separated on or after 28 September 2022)

The Western Australia After-Divorce Checklist covers the administrative sequencing for both married and de facto separations under WA's unique dual-jurisdiction system — from property transfers through Landgate to super splitting with major funds like GESB.

See more Western Australia guides →