EXPLANATORY STATEMENT
Proclamation
Issued by the authority of the Attorney-General
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008
Subsection 2(1) of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (the De Facto Act) provides that certain items of Schedule 1 and Schedule 2, and item 1 of Schedule 4 commence on a day to be fixed by Proclamation. However, if any of those provisions do not commence within six months of the date the Act receives the Royal Assent, then those provisions commence on the first day after the end of that period. The Act received Royal Assent on 21 November 2008.
The purpose of the Proclamation is to fix the date of 1 March 2009 as the commencement date for:
- the Commonwealth de facto property scheme in Schedule 1 to the De Facto Act (items 1 to 4 of Schedule 1), and
- amendments to family dispute resolution requirements in subsection 60I(8) of the FLA (item 1 of Schedule 4).
The commencement of items 1 to 4 of Schedule 1 also triggers the commencement of other provisions in the De Facto Act, including amendments to other Acts consequential on the operation of the Commonwealth de facto property scheme.
The De Facto Act amends the Family Law Act 1975 (FLA) to confer jurisdiction on the federal family courts to hear and determine matters related to the breakdown of de facto relationships. This will apply to both same sex and opposite sex de facto couples. The De Facto Act creates a uniform and consistent Commonwealth de facto property scheme that applies in all States other than South Australia and Western Australia, and also applies in the Territories.
To give effect to the amendments in the De Facto Act, the family courts have needed to prepare to hear these new types of matters and particularly to update their Court rules. These changes will be finalised by 1 March 2009.
Consultation on the content of the Proclamation was undertaken under section 17 of the Legislative Instruments Act 2003 with the Family Court of Australia, the Federal Magistrates Court, the Department of Education, Employment and Workplace Relations, the Department of Families, Housing, Community Services and Indigenous Affairs, the Department of Human Services, the Insolvency Trustee Service Australia, The Treasury and the Department of Veterans’ Affairs.
Overview
The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 was enacted to address a significant gap in the legal framework concerning de facto relationships. This Act received Royal Assent on 21 November 2008 and was designed to extend the jurisdiction of the federal family courts to include matters related to the breakdown of both same-sex and opposite-sex de facto relationships. By doing so, the Act aims to create a uniform and consistent Commonwealth de facto property scheme applicable across Australia, excluding South Australia and Western Australia, and the Territories. This legislative initiative was necessary to provide legal clarity and protections for de facto couples, ensuring they have access to equitable outcomes in property and financial disputes following relationship breakdowns. The policy objective of the Act is to streamline the legal process and provide a cohesive approach to handling de facto relationship matters, thereby ensuring fairness and consistency in outcomes across jurisdictions.
Scope and Application
The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 applies to de facto couples, which includes both same-sex and opposite-sex partners who have been in a relationship for a specified period, providing them with a legal framework to resolve financial disputes similar to that available to married couples. The Act extends to the entire Commonwealth, except for South Australia and Western Australia, and also applies to the Australian Territories. Its jurisdictional reach is significant, as it grants the federal family courts the authority to hear and determine matters related to the breakdown of de facto relationships, thereby unifying the legal approach across most jurisdictions. The Act includes provisions that trigger the commencement of other consequential amendments, which are set to commence on 1 March 2009, as fixed by the Proclamation issued under the authority of the Attorney-General. This commencement date also applies to specific amendments to family dispute resolution requirements. Subordinate instruments and rules may further refine the application of these provisions, ensuring the family courts are adequately prepared to handle the new types of matters arising from the Act.
Key Provisions
The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (the De Facto Act) establishes a new legal framework for the property settlement process in de facto relationships, including both same-sex and opposite-sex couples. The key provisions, which are outlined in Schedule 1, items 1 to 4, and Schedule 4, item 1, commence on 1 March 2009. These provisions introduce a Commonwealth de facto property scheme, which provides a uniform approach to property division in the event of a relationship breakdown, applicable in all states and territories except South Australia and Western Australia. Additionally, these provisions amend family dispute resolution requirements under the Family Law Act 1975 (FLA) to ensure that the new de facto relationship regime is properly integrated into the family law system.
The De Facto Act imposes several obligations on the parties involved in de facto relationships. Firstly, it requires that the federal family courts, including the Family Court of Australia and the Federal Magistrates Court, have the jurisdiction to hear and determine matters related to the breakdown of de facto relationships. This includes property settlement disputes, which were previously outside the scope of federal family law. Secondly, the Act mandates that the courts update their rules and procedures to accommodate these new types of matters, ensuring that the process is fair and efficient for all parties involved. Lastly, the De Facto Act requires that the new de facto relationship property scheme be applied consistently across all states and territories, except for South Australia and Western Australia, where alternative state-based schemes continue to apply.
The Act also outlines specific offences, penalties, and consequences for breaches of its provisions. Although the explanatory statement does not detail specific penalties, it is clear that non-compliance with the requirements and obligations outlined in the De Facto Act could lead to legal consequences. For example, failure to properly divide property in accordance with the new de facto relationship scheme could result in the courts making orders that are contrary to the provisions of the Act. Additionally, failure to comply with updated court rules and procedures may result in delays or other procedural issues in family law matters. It is important to note that the specific penalties for breaches of the De Facto Act are not outlined in the explanatory statement, but could include fines, imprisonment, or other civil or criminal consequences, depending on the nature and severity of the breach.