Due to an oversight the law that gave Family or Federal Magistrates Court jurisdiction to rule on property settlements between de facto couple, there was some uncertainty around the status of certain family law court orders.
The Commonwealth's Family Court of Australia and Federal Magistrates' Court have jurisdiction to deal with property involving married couples. Pursuant to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory, the Northern Territory, Norfolk Island, Christmas Island or the Cocos (Keeling) Island starting March 1, 2009, relinquished to the Federal Government their power to deal with property and maintenance matter upon breakdown of relationship of heterosexual and same sex couples.
However, the Governor General failed to proclaim the new de facto relationship laws, which means the new laws failed to take effect. When the issue was discovered in February, Governor-General Quentin Bryce promptly issued the proclamation and enacted the Amendments to commence from Feb. 11, 2012.
Division 2 of Part 2 of the Amendments provides that provisions relating to de facto relationship matters do not extend to a de facto relationship that has broken down before the COMMENCEMENT OF THE NEW LAWS, unless both parties opt by writing into the new de facto laws. The new de facto laws officially commenced Feb. 11, not March 1, 2009.
The Family and Federal Magistrate Court have issued thousands of orders between March 1, 2009 and Feb. 10, 2012. This raised concerns that the validity of those orders could be challenged on the basis that they did not have jurisdiction.
In March, retrospective laws were introduced to parliament to fix the loophole. The bill aims to give people certainty by putting them in the same legal position, with the same rights and liabilities as if the proclamation were made in 2009.
The Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012 received the Royal Assent on April 10, 2012. The Act retrospectively validates affected orders and therefore avoids the need for individuals to go back to court.
Relationship and marriage break downs can be emotional and stressful times especially when property and children are involved. The new federal laws aim to make the system easier to navigate for those that need to make use of it however it is still very complex and every situation is different. If you need advice in regards to property division or other family law matters, contact a family lawyer.
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