Tuesday, 23 June 2009

Qld: Bill to amend Property Law Act and Duties Act

The Property Law and Another Act Amendment Bill[PDF] has been introduced to the Queensland Parliament as a consequence of the referral of the de facto property powers to the Commonwealth, which resulted in amendments to the Family Law Act.

The two key provisions of the Bill are:

  • a new s.255A of the Property Law Act, which would provide:


255A Relationship of this part with the Family Law Act in
relation to particular financial matters
‘(1) The State, by the Commonwealth Powers (De Facto
Relationships) Act 2003, referred the following matters (to the
extent that they are not otherwise included in the legislative
powers of the Parliament of the Commonwealth) to the
Parliament of the Commonwealth—
(a) financial matters relating to de facto partners arising out
of the breakdown (other than by reason of death) of de
facto relationships between persons of different sexes;
(b) financial matters relating to de facto partners arising out
of the breakdown (other than by reason of death) of de
facto relationships between persons of the same sex.
‘(2) Consequently, this part does not apply in relation to financial
matters relating to de facto partners arising out of the
breakdown of their de facto relationship if the Commonwealth
Act applies in relation to the matters.
Note—
In most cases de facto partners seeking resolution of financial matters
arising out of the breakdown of their relationship should now proceed
under the Commonwealth Act.
‘(3) However, this part continues to apply in relation to financial
matters relating to de facto partners if the Commonwealth Act
does not apply.
Examples—
1 The Commonwealth Act, section 90SK provides that particular
requirements must be satisfied before a court may make a
declaration under section 90SL of that Act. If, in the particular
circumstances of a case, those requirements are not satisfied, this
part may apply.
2 This part applies to de facto relationships that break down after 21
December 1999 and before the commencement of the Family Law
Amendment (De Facto Financial Matters and Other Measures) Act
2008 (Cwlth) (the Commonwealth amending Act) on 1 March
2009. However, section 86A of the Commonwealth amending Act
provides that de facto partners whose relationship broke down
before the commencement of that amending Act may choose to
agree to the application of particular provisions of the
Commonwealth Act to the de facto relationship in particular
circumstances.’.

  • amendment of the Duties Act so that duty does not apply to orders or binding financial agreements covering de facto partners under the Family Law Act. Of course, although the changes occurred on 1 March 2009 to the Family Law Act, the proposed changes to teh Duties Act have not yet taken place, because the Bill has not been passed.

Explanatory Notes[PDF]

The explanatory notes provide, relevantly:



Objectives of the Bill
The objectives of this Bill are to:
• amend the Property Law Act 1974 (PLA) to clarify the relationship
and operation of Part 19 of the PLA with the Family Law Act 1975
(FLA), following the Commonwealth Parliament’s acceptance of the
referral of power from the Queensland Parliament for financial
matters arising from the breakdown of de facto relationships; and
• amend the Duties Act 2001 (DA) to clarify the relationship and
operation of the DA with the FLA, following the Commonwealth
Parliament’s acceptance of the referral of power from the Queensland
Parliament for financial matters arising from the breakdown of de
facto relationships.


Reasons for the objectives of the Bill and how they will be
achieved

Up until 1 March 2009, de facto couples who separated in Queensland had
to access two different jurisdictions to have disputes resolved. Disputes
about the division of property were dealt with in Queensland courts under
Part 19 of the PLA and disputes about children were dealt with in Federal
family law courts under the FLA. In addition, separating de facto couples
in Queensland, did not have the opportunity to seek spousal (as contrasted
to parental) maintenance, seek orders to divide superannuation or access
the counselling and mediation services supporting the Federal family law
jurisdiction.


In 2003, the Queensland Parliament passed the Commonwealth Powers (De
Facto Relationships) Act 2003 (the Referral Act). The Referral Act refers
to the Commonwealth the power about financial matters arising from the
break down of de facto relationships. The Referral Act commenced on 24
October 2008.


The Commonwealth Government has accepted the referrals of power from
all States (except Western Australia and South Australia who have not yet
referred powers to the Commonwealth) for financial matters arising from
the breakdown of a de facto relationship. The Family Law Amendment (De
Facto Financial Matters and Other Measures) Bill 2008 (the De Facto
Property Bill) amended the FLA to take up this referral of power. The De
Facto Property Bill was passed by both Houses of the Commonwealth
Parliament on 10 November 2008. The amendments in the De Facto
Property Bill commenced on 1 March 2009.


The key effect of the Commonwealth taking up the referral from
Queensland is that from 1 March 2009, the Queensland legislation relating
to financial matters arising from a de facto relationship breakdown (most of
Part 19 of the PLA) will be excluded from operation. De facto partners
whose relationship breaks down after 1 March 2009 must apply for a
property division under the FLA and can no longer apply under the PLA.
The significant advantages of the Commonwealth taking up the referral
from Queensland are:
(a) the provision of a predominantly nationally consistent financial
settlement regime, to minimise jurisdictional disputes and
uncertainties that sometimes impede settlement of these matters
under State and Territory law;
(b) the Federal family law courts have experience in relationship
matters and have procedures and dispute resolution mechanisms
more suited to handling family litigation;
(c) the relevant Federal family law courts will hear both financial
and child-related matters arising between separated de facto
couples together; and
(d) the relevant Federal family law courts may make orders relating
to superannuation splitting, orders relating to the maintenance of
a party, orders about the bankruptcy of a party and orders binding
third parties in related proceedings.


The new provisions in the FLA will cover the field in relation to financial
matters following a de facto relationship breakdown, so that most of the
provisions in the PLA will not apply to de facto relationships. However,
there are some provisions that will continue to apply and these include:
(a) the operation of Part 19 to de facto relationships that broke down
prior to 1 March 2009 (except where the couple have chosen to
opt into the FLA);
(b) cohabitation agreements defined under section 264 of the PLA
that do not refer to financial matters following a relationship
breakdown;
(c) declarations under section 280 or Division 5 of Part 19 of the
PLA that are not made for the purposes of the resolution of
financial matters following a relationship breakdown; and
(d) the operation of Part 19 to those de facto relationships that broke
down in a State that has not referred the power for financial
matters following a de facto relationship breakdown to the
Commonwealth and the geographical requirements in the FLA
do not allow an application to be made under the FLA. An
application may still be made under Part 19 of the PLA.


The Bill amends Part 19 of the PLA to clarify the relationship between the
FLA and the PLA and to also clarify the operation of Part 19 since the new
provisions of the FLA commenced. The Bill also includes a provision that
will resolve any jurisdictional disputes that may arise between the PLA and
the FLA.


The Bill also amends the Duties Act 2001 (the DA) to clarify the current
exemptions on certain dutiable transactions arising from the breakdown of
de facto relationships, which will now fall under the duty exemptions in the
FLA.

Second Reading Speech[PDF]


This bill amends the Property Law Act 1974 (the PLA) and the Duties Act 2001 following the
acceptance by the Commonwealth government of the referral of power from Queensland for financial
matters arising from de facto relationship breakdowns. The Commonwealth amendments to the Family
Law Act 1975 (the FLA) that took up this referral of power commenced on 1 March 2009. This bill amends
the PLA to clarify the relationship between the PLA provisions and the FLA provisions and how the PLA
provisions operate from 1 March 2009.


The introduction of this clarifying bill brings to a successful conclusion the long standing campaign by de facto couples to be given
access to the FLA for the determination of their financial and property rights arising from a relationship breakdown.
The key effect of the Commonwealth taking up the referral from Queensland is that any Queensland legislation relating to financial
matters arising out of a de facto relationship breakdown will be excluded from operation.
This will include most of Part 19 of the PLA.
Any de facto couples whose relationship has broken down since 1 March 2009 must apply for a property division under the FLA and
can no longer apply under the PLA.
The FLA also allows de facto couples who separated prior to 1 March 2009 to opt into the FLA provisions where both parties consent.
Prior to 1 March 2009, de facto couples who separated in Queensland had to access two different jurisdictions to have disputes
resolved.
Disputes about the division of property were dealt with in Queensland courts under Part 19 of the PLA and disputes about children
were dealt with in the Federal Family Law Courts under the FLA.
In 1993, the Queensland Law Reform Commission reported that the Federal Family Law Courts were the most suitable forum to hear
and determine financial disputes which arose on the breakdown of de facto relationships.
Since then, this issue has been debated in many other forums, including the Standing Committee of Attorneys-General, where the
failure of the previous Commonwealth government to agree on a suitable referral from the states in relation to de facto couples’
disputes halted the progress of this necessary reform.
On 10 November 2008, the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (the De Facto
Amendment Bill) was passed by both Houses of the Commonwealth parliament.
The De Facto Amendment Bill amended the FLA allowing for the Commonwealth’s acceptance of referrals from states in relation to
financial matters arising from de facto relationship breakdowns.
The Labor Party has long been committed to assisting de facto couples.
In 1999, following the failure of the Commonwealth’s acceptance of a suitable referral from the states about de facto property, the
Queensland Labor government enacted amendments to the PLA that provided for de facto couple property rights, including rights
following a relationship breakdown.
In 2002, the Queensland Labor government passed the Discrimination Law Amendment Act 2002 that reformed Queensland
legislation to give people in de facto relationships the same rights as married people in many areas.
In 2003, the Queensland Labor government passed the Commonwealth Powers (De Facto Relationships) Act 2003 (the Referral Act)
that referred to the Commonwealth the power for financial matters arising from de facto relationship breakdowns.
The commencement of this referral act was delayed until such time as the Commonwealth government agreed to accept a suitable
referral of powers from the states.
This government arranged for the commencement of the referral act on 24 October 2008 following the current Commonwealth
government’s agreement to accept the referral in relation to same-sex as well as opposite-sex de facto relationships.
There are significant advantages to Queensland de facto couples by the Commonwealth taking up the referral from Queensland.
Advantages include the provision of a predominantly nationally consistent financial settlement regime that will minimise jurisdictional
disputes.
Also, the Federal Family Law Courts have experience in relationship matters and have procedures and dispute resolution
mechanisms more suited to handling family litigation than the state courts.
Counselling and mediation are provided to separated couples as part of the Family Court jurisdiction.
Queensland de facto couples will benefit from savings in both costs and time as they will be able to have both their child-related and
property matters heard together.
De facto couples will also have access to courts that may make orders relating to superannuation splitting and orders relating to the
maintenance of a party.
Part 19 of the PLA will continue to apply to de facto relationships that broke down prior to the de facto amendment bill commencing
(except where the couple has chosen to opt into the FLA).
I commend the bill to the House.

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