The Law for Qld De De Facto Couples who separated before 1 March 2009

De Facto Separations in Qld before 1 March 2009

For Queensland couples who separated prior to 1 March 2009, the Property Law Act 1999 (Qld) and not the Family Law Act 1975 (Cth) applies.

Different legislation applies in relation to couples from other States depending on the State that applies to them and the date of their separation.

For Queensland couples who separated prior to 1 March 2009, Court proceedings regarding property settlement must be commenced in Queensland State Courts.

This will be either the District Court of Queensland or the Supreme Court of Queensland depending upon the monetary amount being sought.

Under the Property Law Act 1999 (Qld), a couple is in a de facto relationship if:

 

 

• they have a child together; or

• they lived together as a couple for two years; and

• the arrangement must be on a genuine domestic basis; and

• the relationship must be based on intimacy, trust and personal commitment to each other.

The parties can in some circumstances consent to the jurisdiction of the Federal Circuit Court or the Family Court, however the “opt in” provisions to consent to the Family Law Act applying, will only apply in limited circumstances.

Opting In

Queensland de facto couples may jointly choose for Part VIIIAB of the Family Law Act 1975 (Cth) to apply to them rather than the Property Law Act 1999 (Qld), but only if there are no State Court Orders or Financial Agreements dealing with their financial matters.

The “opt in” choice:

• is unconditional;

• must be in writing;

• must be signed by both parties;

• must include certification that both parties received independent legal advice prior to signing. The independent legal advice must cover the advantages and disadvantages of making the choice.

Once made, the “opt in” choice cannot be revoked.

 

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