De Facto Property Jurisdiction

De Facto Property Jurisdiction

In 2008 the Family Law Act 1975 was amended to provide opposite sex and same sex de facto couples access to the federal family law courts in relation to financial matters.

The new jurisdiction was only to commence after the date of proclamation of the legislation by the Governor General.

It has recently been discovered that the proclamation of the amending Act had been overlooked and accordingly on 9 February 2012 the Governor-General made a proclamation fixing 11 February 2012 as the date from which the legislation would take effect.

The problem that this gives rise to is that there is a gap in the jurisdiction between the date of commencement of the legislation on 1 March 2009(1 July 2010 in South Australia) and 11 February 2012 being the date the proclamation takes effect.

The effect of all this is that orders made during the gap by both the Family Court and the Federal Magistrates Court would seem to have been made without jurisdiction and applications made to the courts in that period not validly issued.

Questions of validity will remain until the Government rectifies the matter by retrospective legislation, the possibility of which is apparently presently being considered.

Until the problem is rectified, any orders made during the relevant period are potentially invalid and this creates uncertainty for separated parties who entered into settlements on the basis that they would be valid.

The issue shows how a simple mistake can give rise to extensive and very significant consequences.Hopefully the matter can be resolved as quickly as possible with the co-operation of all involved