If you are a former de facto partner completing an Application for Consent Orders, you will eventually hit this question:
Do both parties each choose for Parts VIIIAB and VIIIB, and subsection 114(2A) of the Family Law Act 1975 to apply in relation to your de facto relationship?
It is, by some distance, the question that generates the most confusion — and the most calls to lawyers. The wording assumes a familiarity with the transitional history of the Family Law Act 1975 (Cth) that almost nobody, including many practitioners, carries around in their head. Here is what it actually means, in plain terms.
A short history lesson
Until relatively recently, the property and financial affairs of separating de facto couples were not dealt with under the federal Family Law Act at all. They were governed by a patchwork of State and Territory laws, which were generally less generous and — importantly — could not split superannuation.
That changed when the States (other than Western Australia) referred their powers to the Commonwealth. From 1 March 2009 (and from 1 July 2010 in South Australia), de facto couples whose relationships broke down were brought under the federal regime:
- Part VIIIAB — property settlement and maintenance for de facto couples;
- Part VIIIB — superannuation splitting; and
- section 114(2A) — the court’s power to grant injunctions in de facto matters.
So what is the question asking?
It is asking about timing — specifically, when your de facto relationship broke down.
If your relationship broke down on or after 1 March 2009 (or 1 July 2010 in South Australia), the federal regime applies to you automatically. There is no choice to make, and the answer for both parties is simply “No”. Given how long ago those dates now are, this is the answer in the overwhelming majority of applications. Ticking “No” does not mean you are opting out of anything — the Act already applies to you.
If your relationship broke down before that date, the federal regime does not apply automatically. The default is the old State or Territory law. But the transitional provisions allow both parties to choose — to opt in — to the federal regime instead. Couples in this position usually opt in for one main reason: only the federal Act allows superannuation to be split.
The strings attached to opting in
The opt-in is deliberately formal, because it changes which legal regime governs your rights. Three requirements must be satisfied:
- Both parties must choose. One person cannot opt in alone.
- The choice must be in writing and signed by each party.
- Each party must have received independent legal advice before signing, and a legal practitioner must provide a signed statement confirming that advice was given.
That is why the form directs you to attach copies of your written and signed consent and statement of legal advice by a legal practitioner if you tick “Yes”. Without those documents, the election is ineffective.
A note for Western Australia
WA sits outside this scheme. De facto property matters there continue to run under the Family Court Act 1997 (WA), although Commonwealth superannuation splitting was extended to WA de facto couples from 28 September 2022. If your relationship has a WA connection, get specific advice.
The short version
- Separated on or after 1 March 2009 (1 July 2010 in SA)? Tick No for both parties and move on. Nothing is lost.
- Separated before that date and want the federal regime (typically for super splitting)? Tick Yes — but only after both of you have signed a written choice and each obtained independent legal advice, with the practitioner’s signed statement attached.
If you are unsure when your relationship “broke down” for these purposes, or whether opting in is in your interests, that is exactly the kind of question worth raising before the application is filed.