Commonwealth: Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)

Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 No. 115, 2008 An Act to amend the Family Law Act 1975, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Amendments relating to de facto financial matters Part 1—Amendments Family Law Act 1975 Part 2—Transitional provisions Division 1—Introduction Division 2—Application of new Act to de facto relationships breaking down before commencement Division 3—De facto relationships linked to earlier participating jurisdictions Division 4—De facto relationships linked to later participating jurisdictions Division 5—Application of new Act to transitioning agreements Schedule 2—Consequential amendments relating to de facto financial matters A New Tax System (Family Assistance) Act 1999 Bankruptcy Act 1966 Child Support (Assessment) Act 1989 Child Support (Registration and Collection) Act 1988 Federal Magistrates Act 1999 First Home Saver Accounts Act 2008 Income Tax Assessment Act 1997 Proceeds of Crime Act 2002 Social Security Act 1991 Veterans' Entitlements Act 1986 Schedule 3—Amendments relating to financial agreements about marriage Part 1—Clarifying that other persons can be parties Family Law Act 1975 Part 2—Separation declarations Family Law Act 1975 Part 3—Matrimonial causes Family Law Act 1975 Part 4—Other amendments Family Law Act 1975 Schedule 3A—Children Family Law Act 1975 Schedule 4—Other measures Family Law Act 1975 Proceeds of Crime Act 2002 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 No. 115, 2008 An Act to amend the Family Law Act 1975, and for related purposes [Assented to 21 November 2008] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 21 November 2008 2. Schedule 1, items 1 to 4 A single day to be fixed by Proclamation. 1 March 2009 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. (see F2009L00264) 2A. Schedule 1, item 5 The day on which this Act receives the Royal Assent. 21 November 2008 2B. Schedule 1, items 6 to 20 At the same time as the provision(s) covered by table item 2. 1 March 2009 2C. Schedule 1, item 21 The day on which this Act receives the Royal Assent. 21 November 2008 2D. Schedule 1, items 22 to 93 At the same time as the provision(s) covered by table item 2. 1 March 2009 3. Schedule 2, items 1 to 32 At the same time as the provision(s) covered by table item 2. 1 March 2009 4. Schedule 2, item 33 The later of: 1 March 2009 (a) the commencement of the provision(s) covered by table item 2; and (paragraph (a) applies) (b) the commencement of the First Home Saver Accounts Act 2008. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 5. Schedule 2, items 34 to 52 At the same time as the provision(s) covered by table item 2. 1 March 2009 6. Schedule 3 The day on which this Act receives the Royal Assent. 21 November 2008 6A. Schedule 3A The day on which this Act receives the Royal Assent. 21 November 2008 7. Schedule 4, item 1 A single day to be fixed by Proclamation. 1 March 2009 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. (see F2009L00264) 8. Schedule 4, item 2 Immediately after the commencement of section 330 of the Proceeds of Crime Act 2002. 1 January 2003 Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendments relating to de facto financial matters Part 1—Amendments Family Law Act 1975 1 Title Omit "Children, and", substitute "Children, and to financial matters arising out of the breakdown of de facto relationships and to". 2 Subsection 4(1) Insert: breakdown: (a) in relation to a marriage, does not include a breakdown of the marriage by reason of death; and (b) in relation to a de facto relationship, does not include a breakdown of the relationship by reason of death. 3 Subsection 4(1) Insert: de facto financial cause means: (a) proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of their de facto relationship; or (b) proceedings between: (i) a party to a de facto relationship; and (ii) the bankruptcy trustee of a bankrupt party to the de facto relationship; with respect to the maintenance of the first‑mentioned party after the breakdown of the de facto relationship; or (c) proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them; or (d) proceedings between: (i) a party to a de facto relationship; and (ii) the bankruptcy trustee of a bankrupt party to the de facto relationship; with respect to the distribution, after the breakdown of the de facto relationship, of any vested bankruptcy property in relation to the bankrupt party; or (e) without limiting any of the preceding paragraphs, proceedings with respect to a Part VIIIAB financial agreement that are between any combination of: (i) the parties to that agreement; and (ii) the legal personal representatives of any of those parties who have died; (including a combination consisting solely of parties or consisting solely of representatives); or (f) third party proceedings (as defined in section 4B) to set aside a Part VIIIAB financial agreement; or (g) any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of the preceding paragraphs. 4 Subsection 4(1) Insert: de facto property settlement or maintenance proceedings means proceedings with respect to: (a) the distribution of the property of the parties to a de facto relationship or of either of them; or (b) the distribution of the vested bankruptcy property in relation to a bankrupt party to a de facto relationship; or (c) the maintenance of a party to a de facto relationship. 5 Subsection 4(1) (definition of de facto relationship) Repeal the definition, substitute: de facto relationship has the meaning given by section 4AA. 6 Subsection 4(1) Insert: distribute: (a) in relation to: (i) property, and financial resources, of the parties to a de facto relationship or either of them; or (ii) vested bankruptcy property in relation to a bankrupt party to a de facto relationship; includes conferring rights or obligations in relation to the property or financial resources; and (b) in relation to a Part VIIIAB financial agreement, has a meaning affected by subsection 90UI(3). 7 Subsection 4(1) (definition of financial matters) Repeal the definition, substitute: financial matters means: (a) in relation to the parties to a marriage—matters with respect to: (i) the maintenance of one of the parties; or (ii) the property of those parties or of either of them; or (iii) the maintenance of children of the marriage; or (b) in relation to the parties to a de facto relationship—any or all of the following matters: (i) the maintenance of one of the parties; (ii) the distribution of the property of the parties or of either of them; (iii) the distribution of any other financial resources of the parties or of either of them. 8 Subsection 4(1) Insert: non‑referring State de facto financial law means a law that: (a) is a law of a State that is not a participating jurisdiction; and (b) relates to financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships. 9 Subsection 4(1) Insert: participating jurisdiction has the meaning given by subsection 90RA(1). 10 Subsection 4(1) Insert: Part VIIIAB financial agreement means an agreement: (a) made under section 90UB, 90UC or 90UD; or (b) covered by section 90UE. 11 Subsection 4(1) Insert: Part VIIIAB proceedings means: (a) proceedings under Part VIIIAB for orders with respect to: (i) the maintenance of a party to a de facto relationship; or (ii) the property of the parties to a de facto relationship or of either of them; or (b) proceedings in relation to a Part VIIIAB financial agreement; but does not include any proceedings specified in the regulations for the purposes of this definition. 12 Subsection 4(1) Insert: Part VIIIAB termination agreement means an agreement made under paragraph 90UL(1)(b). 13 Subsection 4(1) Insert: party to a de facto relationship means a person who lives or has lived in a de facto relationship. 14 Subsection 4(1) (definition of property) Repeal the definition, substitute: property means: (a) in relation to the parties to a marriage or either of them—means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion; or (b) in relation to the parties to a de facto relationship or either of them—means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion. 15 Subsection 4(1) (definition of property settlement proceedings) Repeal the definition, substitute: property settlement proceedings means: (a) in relation to the parties to a marriage—proceedings with respect to: (i) the property of the parties or either of them; or (ii) the vested bankruptcy property in relation to a bankrupt party to the marriage; or (b) in relation to the parties to a de facto relationship—proceedings with respect to: (i) the property of the parties or either of them; or (ii) the vested bankruptcy property in relation to a bankrupt party to the de facto relationship. 16 Subsection 4(1) Insert: referring State has the meaning given by subsections 90RA(2), (3), (4) and (5). 17 Subsection 4(1) Insert: section 90RD declaration means a declaration under subsection 90RD(1). 18 Subsection 4(1) (definition of spouse party) Repeal the definition, substitute: spouse party means: (a) in relation to a financial agreement—a party to the agreement who is a party to the contemplated marriage, marriage or former marriage to which the agreement relates; or (b) in relation to a Part VIIIAB financial agreement—a party to the agreement who is a party to the contemplated de facto relationship, de facto relationship or former de facto relationship to which the agreement relates. 19 Subsection 4(1) (definition of third party) Repeal the definition, substitute: third party, in relation to a financial agreement or Part VIIIAB financial agreement, means a party to the agreement who is not a spouse party. 20 After subsection 4(2) Insert: (2A) A reference in this Act, the standard Rules of Court or the related Federal Magistrates Rules to a party to a de facto relationship includes a reference to a person who was a party to a de facto relationship that has broken down. 21 After section 4 Insert: 4AA De facto relationships Meaning of de facto relationship (1) A person is in a de facto relationship with another person if: (a) the persons are not legally married to each other; and (b) the persons are not related by family (see subsection (6)); and (c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. Paragraph (c) has effect subject to subsection (5). Working out if persons have a relationship as a couple (2) Those circumstances may include any or all of the following: (a) the duration of the relationship; (b) the nature and extent of their common residence; (c) whether a sexual relationship exists; (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (e) the ownership, use and acquisition of their property; (f) the degree of mutual commitment to a shared life; (g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship; (h) the care and support of children; (i) the reputation and public aspects of the relationship. (3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship. (4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (5) For the purposes of this Act: (a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and (b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship. When 2 persons are related by family (6) For the purposes of subsection (1), 2 persons are related by family if: (a) one is the child (including an adopted child) of the other; or (b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or (c) they have a parent in common (who may be an adoptive parent of either or both of them). For this purpose, disregard whether an adoption is declared void or has ceased to have effect. 22 After subsection 4A(1) Insert: (1A) For the purposes of paragraph (eab) of the definition of matrimonial cause in subsection 4(1), third party proceedings also means proceedings between: (a) any combination of: (i) the parties to a financial agreement; and (ii) the legal personal representatives of any of those parties who have died; (including a combination consisting solely of parties or consisting solely of representatives); and (b) either: (i) another person who is a party to a de facto relationship with one of the spouse parties to the financial agreement; or (ii) the legal personal representative of that other person if that person has died; being proceedings for the setting aside of the financial agreement on the ground specified in paragraph 90K(1)(ab). 23 After section 4A Insert: 4B Third party proceedings to set aside Part VIIIAB financial agreement (1) For the purposes of paragraph (f) of the definition of de facto financial cause in subsection 4(1), third party proceedings means proceedings between: (a) any combination of: (i) the parties to a Part VIIIAB financial agreement; and (ii) the legal personal representatives of any of those parties who have died; (including a combination consisting solely of parties or consisting solely of representatives); and (b) any of the following: (i) a creditor; (ii) if a creditor is an individual who has died—the legal personal representative of the creditor; (iii) a government body acting in the interests of a creditor; being proceedings for the setting aside of the Part VIIIAB financial agreement on the ground specified in paragraph 90UM(1)(b). (2) For the purposes of paragraph (f) of the definition of de facto financial cause in subsection 4(1), third party proceedings also means proceedings between: (a) any combination of: (i) the parties to a Part VIIIAB financial agreement; and (ii) the legal personal representatives of any of those parties who have died; (including a combination consisting solely of parties or consisting solely of representatives); and (b) either: (i) another person who is a party to a de facto relationship with one of the spouse parties to the Part VIIIAB financial agreement; or (ii) the legal personal representative of that other person if that person has died; being proceedings for the setting aside of the Part VIIIAB financial agreement on the ground specified in paragraph 90UM(1)(c). (3) For the purposes of paragraph (f) of the definition of de facto financial cause in subsection 4(1), third party proceedings also means proceedings between: (a) any combination of: (i) the parties to a Part VIIIAB financial agreement; and (ii) the legal personal representatives of any of those parties who have died; (including a combination consisting solely of parties or consisting solely of representatives); and (b) either: (i) another person who is a party to a marriage with one of the spouse parties to the Part VIIIAB financial agreement; or (ii) the legal personal representative of that other person if that person has died; being proceedings for the setting aside of the Part VIIIAB financial agreement on the ground specified in paragraph 90UM(1)(d). (4) In this section: creditor means: (a) a creditor of a party to the Part VIIIAB financial agreement; or (b) a person who, at the commencement of the proceedings, could reasonably have been foreseen by the court as being reasonably likely to become a creditor of a party to the Part VIIIAB financial agreement. government body means: (a) the Commonwealth, a State or a Territory; or (b) an official or authority of the Commonwealth, a State or a Territory. 24 Paragraph 10L(2)(a) After "Part VIII proceedings", insert ", or Part VIIIAB proceedings (other than proceedings relating to a Part VIIIAB financial agreement),". 25 Subparagraph 10L(2)(b)(i) After "Part VIIIA proceedings,", insert "Part VIIIAB proceedings,". 26 Subsection 13E(1) Omit all the words after "exercising", substitute: jurisdiction in: (a) Part VIII proceedings; or (b) Part VIIIAB proceedings (other than proceedings relating to a Part VIIIAB financial agreement); may make an order referring the proceedings, or any part of them, or any matter arising in them, to an arbitrator for arbitration. Note: The heading to section 13E is altered by inserting "or Part VIIIAB proceedings" after "Part VIII proceedings". 27 At the end of paragraph 31(1)(a) Add "and". 28 After paragraph 31(1)(a) Insert: (aa) matters arising under this Act in respect of which de facto financial causes are instituted under this Act; and 29 At the end of paragraph 31(1)(b) Add "and". 30 Subparagraph 37A(1)(f)(i) Omit "or 77", substitute ", 77 or 90SG". 31 Part V (heading) Repeal the heading, substitute: Part V—Jurisdiction of courts 32 Before section 39 Insert: Division 1—Jurisdiction in matrimonial causes 33 After section 39 Insert: Division 2—Jurisdiction in de facto financial causes 39A Instituting proceedings Instituting proceedings under this Act (1) A de facto financial cause may be instituted under this Act in: (a) the Family Court; or (b) the Federal Magistrates Court; or (c) the Supreme Court of the Northern Territory of Australia; or (d) a court of summary jurisdiction of a participating jurisdiction. (2) However: (a) in the case of proceedings between the parties to the de facto relationship—either of those parties; or (b) in any other case—at least one of the parties to the proceedings; must be an Australian citizen, ordinarily resident in Australia or present in Australia on the following day: (c) if the application instituting the proceedings is filed in a court—the day on which the application is so filed; (d) in any other case—the day on which the application instituting the proceedings is made. (3) Subsection (2) does not apply in relation to proceedings referred to in paragraph (g) of the definition of de facto financial cause in subsection 4(1). (4) Subsection (1) has effect subject to this Part. Proceedings only to be instituted under this Act (5) A de facto financial cause that may be instituted under this Act must not, after the commencement of this section, be instituted otherwise than under this Act. (6) Subsection (5) has effect subject to subsection 90RC(5). 39B Jurisdiction in de facto financial causes (1) Jurisdiction is conferred on: (a) the Family Court; and (b) the Federal Magistrates Court; and (c) the Supreme Court of the Northern Territory of Australia; and (d) each court of summary jurisdiction of each Territory; with respect to matters arising under this Act in respect of which de facto financial causes are instituted under this Act. Note 1: The exercise of this jurisdiction by the Family Court is subject to section 40. Note 2: The exercise of this jurisdiction by the Federal Magistrates Court is subject to section 40A. Note 3: The exercise of this jurisdiction by a Territory court is subject to sections 39C, 39D, 39E and 39F. (2) Each court of summary jurisdiction of each referring State is invested with federal jurisdiction with respect to matters arising under this Act in respect of which de facto financial causes are instituted under this Act. Note: The exercise of this jurisdiction by a State court is subject to sections 39D and 39E. (3) This section has effect subject to this Part. 39C Ceasing jurisdiction of Supreme Court of the Northern Territory of Australia (1) The Governor‑General may, by Proclamation, fix a day as the day on and after which a de facto financial cause: (a) may not be instituted in, or transferred to, the Supreme Court of the Northern Territory of Australia; or (b) may be so instituted or transferred only where specified conditions are complied with. (2) Without limiting the generality of subsection (1), a Proclamation under that subsection may be expressed to apply only in relation to one or more of the following: (a) proceedings of specified classes; (b) the institution of proceedings in, or the transfer of proceedings to, the Supreme Court of the Northern Territory of Australia. (3) The Supreme Court of the Northern Territory of Australia must not hear and determine de facto financial causes otherwise than in accordance with any Proclamation in force under subsection (1). 39D Ceasing jurisdiction of State or Territory courts of summary jurisdiction (1) The Governor‑General may, by Proclamation, fix a day as the day on and after which a de facto financial cause may not be instituted in, or transferred to, a court of summary jurisdiction in a specified participating jurisdiction. (2) Without limiting the generality of subsection (1), a Proclamation under that subsection may be expressed to apply only in relation to one or more of the following: (a) proceedings of specified classes; (b) the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction in a specified part of a participating jurisdiction; (c) the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction constituted in a specified way. (3) A court of summary jurisdiction must not hear and determine de facto financial causes otherwise than in accordance with any Proclamation in force under subsection (1). 39E Revoking Proclamations ceasing jurisdiction of State or Territory courts (1) The Governor‑General may, by Proclamation, declare that a Proclamation under section 39C or 39D is revoked on and from a specified day. (2) If, under subsection (1), the Governor‑General declares that a Proclamation under section 39C or 39D is revoked: (a) this Part (including sections 39C and 39D) has effect as if the revoked Proclamation had not been made; but (b) the effect of the revoked Proclamation on the jurisdiction of courts before the specified day is not affected. 39F Territory court does not have jurisdiction unless a party is ordinarily resident in the Territory A court of a Territory must not hear or determine a de facto financial cause unless at least one of the parties to the proceedings is ordinarily resident in the Territory when the proceedings are instituted or are transferred to the court. 39G Jurisdiction in relation to transferred matters under other Commonwealth laws If proceedings in relation to a matter arising under a law of the Commonwealth are transferred under this Act to a court that has jurisdiction conferred on or invested in it by this Division, the jurisdiction so conferred on or invested in the court includes jurisdiction in relation to that matter. Division 3—Other provisions 34 Section 43 Before "The", insert "(1)". 35 At the end of section 43 Add: (2) Paragraph (1)(a) does not apply in relation to the exercise of jurisdiction conferred or invested by Division 2. 36 At the end of section 44 Add: (5) Subject to subsection (6), a party to a de facto relationship may apply for: (a) an order under section 90SE, 90SG or 90SM; or (b) a declaration under section 90SL; only if the application is made within the period of 2 years after the end of the de facto relationship (the standard application period). (6) The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that: (a) hardship would be caused to the party or a child if leave were not granted; or (b) in the case of an application for an order for the maintenance of the party—the party's circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit. 37 Subsection 45(1A) After "proceedings" (second occurring), insert "under this Act". 38 After subsection 45(1A) Insert: (1B) For the purposes of subsection (1): (a) a de facto financial cause instituted in relation to a de facto relationship; and (b) proceedings relating to an application, by the bankruptcy trustee of one of the parties to the de facto relationship, under section 139A of the Bankruptcy Act 1966 for an order under Division 4A of Part VI of that Act; are taken to be proceedings under this Act in relation to the same matter. (1C) For the purposes of subsection (1), the first proceedings set out in each item of following table, and the second proceedings set out in that item, are taken to relate to the same matter if one of the parties to each marriage, void marriage or de facto relationship referred to in that item is the same. Proceedings relating to the same matter Item First proceedings Second proceedings 1 a matrimonial cause instituted in relation to a marriage (or void marriage) a de facto financial cause instituted in relation to a de facto relationship 2 a de facto financial cause instituted in relation to a de facto relationship a de facto financial cause instituted in relation to a de facto relationship 39 Subsection 69ZM(3) Repeal the subsection, substitute: (3) This Division also applies to other proceedings between the parties that involve the court exercising jurisdiction under this Act if: (a) the proceedings: (i) arise from the breakdown of the parties' marital relationship; or (ii) are a de facto financial cause; and (b) the parties to the proceedings consent. 40 At the end of paragraphs 75(2)(a), (b), (c), (d), (e), (f), (g), (h), (j), (k), (l), (m) and (n) Add "and". 41 After paragraph 75(2)(n) Insert: (naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to: (i) a party to the marriage; or (ii) a person who is a party to a de facto relationship with a party to the marriage; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and 42 Paragraph 75(2)(p) After "parties", insert "to the marriage". 43 At the end of subsection 75(2) Add: ; and (q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage. 44 Subsection 79(10) After "this section", insert "by a party to a marriage (the subject marriage)". 45 After paragraph 79(10)(a) Insert: (aa) a person: (i) who is a party to a de facto relationship with a party to the subject marriage; and (ii) who could apply, or has an application pending, for an order under section 90SM, or a declaration under section 90SL, in relation to the de facto relationship; (ab) a person who is a party to a Part VIIIAB financial agreement (that is binding on the person) with a party to the subject marriage; 46 After subsection 79(10A) Insert: (10B) If a person becomes a party to proceedings under this section because of paragraph (10)(aa), the person may, in the proceedings, apply for: (a) an order under section 90SM; or (b) a declaration under section 90SL; in relation to the de facto relationship described in that paragraph. 47 At the end of section 79F Add: Note: The applicable Rules of Court may, for example, require notice to be given to persons referred to in subsection 79(10) whose interests could be affected by proceedings for an order under section 79. 48 Subparagraph 83(2)(a)(i) After "changed", insert "(including the person entering into a stable and continuing de facto relationship)". 49 After paragraph 90K(1)(aa) Insert: (ab) a party (the agreement party) to the agreement entered into the agreement: (i) for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a de facto relationship with a spouse party; or (ii) for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 90SM, or a declaration under section 90SL, in relation to the de facto relationship; or (iii) with reckless disregard of those interests of that other person; or 50 After Part VIIIA Insert: Part VIIIAB—Financial matters relating to de facto relationships Division 1—Preliminary Subdivision A—Meaning of key terms 90RA Participating jurisdictions Participating jurisdictions (1) For the purposes of this Act, the following are the participating jurisdictions: (a) each referring State; (b) each Territory. Referring States (2) A State is a referring State if: (a) the Parliament of the State has referred, or refers, to the Parliament of the Commonwealth financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships; and (b) the referral of the financial matters is made: (i) for the purposes of paragraph 51(xxxvii) of the Constitution; and (ii) to the extent that the financial matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution). This subsection has effect subject to subsection (5). (3) To avoid doubt, a State is not a referring State if its Parliament has referred, or refers, to the Parliament of the Commonwealth only a limited class of the matters referred to in paragraph (2)(a). (4) A State is a referring State even if a law of the State provides that a reference to the Commonwealth Parliament described in subsection (2) is to terminate in particular circumstances. (5) A State ceases to be a referring State if the State's reference to the Commonwealth Parliament described in subsection (2) terminates. 90RB Meaning of child of a de facto relationship For the purposes of this Part, a child is a child of a de facto relationship if the child is the child of both of the parties to the de facto relationship. Note: To determine who is a child of a person see Subdivision D of Division 1 of Part VII. Subdivision B—Relationship with State and Territory laws 90RC Relationship with State and Territory laws De facto financial provisions (1) In this section: de facto financial provisions means the following provisions: (a) this Part; (b) Part VIIIAA (as applied by section 90TA); (c) Part VIIIB, to the extent to which it relates to a superannuation interest to be allocated between the parties to a de facto relationship; (d) subsection 114(2A). State and Territory laws do not apply to financial matters (2) Parliament intends that the de facto financial provisions are to apply to the exclusion of any law of a State or Territory to the extent that the law: (a) deals with financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships; and (b) deals with those matters by referring expressly to de facto relationships (regardless of how the State or Territory law describes those relationships). Note 1: If, for example, both this Part and a law of a non‑referring State deal with the distribution of property between the parties to a de facto relationship that has broken down after the commencement of this section, then the parties can only seek to distribute the property under this Part. Subsection (2) has the effect of preventing the parties from seeking to distribute the property under the State law. Note 2: For de facto relationship, see section 4AA. Exception—insufficient link to a participating jurisdiction or Division 2 not applicable because of section 90SB (3) Despite subsection (2), Parliament does not intend that the de facto financial provisions are to apply to the exclusion of a law of a State or Territory in relation to a financial matter relating to the parties to a de facto relationship arising out of the breakdown of the relationship if: (a) a court cannot make an order under this Part in relation to that financial matter because of section 90SB, 90SD or 90SK; and (b) there is no Part VIIIAB financial agreement that is binding on the parties dealing with that financial matter. Example 1: Abbey and Bob are parties to a de facto relationship that has broken down, and have never been ordinarily resident in a participating jurisdiction. Subsection (3) has the effect that State law will govern financial matters arising out of the breakdown of their relationship. Example 2: Cleo and Dan are parties to a de facto relationship that has broken down after the commencement of this section. Early in their relationship, they made a financial agreement under the law of a non‑referring State, but later spent most of their relationship in a participating jurisdiction. Cleo and Dan now have a sufficient geographical link with a participating jurisdiction for either of them to apply for an order under this Part in relation to financial matters arising out of the breakdown of their relationship. This means that subsection (3) will not apply and that their financial agreement will not be enforceable under State law because of subsection (2). However, their financial agreement will be enforceable under this Part as a Part VIIIAB financial agreement (see section 90UE). Exception—laws facilitating this Act (4) Despite subsection (2), Parliament does not intend that the de facto financial provisions are to apply to the exclusion of a law of a State or Territory to the extent that the law facilitates the operation of this Act. Note: This Part is not intended to apply to the exclusion of, for example, a State law that deals with superannuation entitlements by acknowledging superannuation splitting under Part VIIIB of this Act. Exception—prescribed State or Territory laws (5) Despite subsection (2), Parliament does not intend that the de facto financial provisions are to apply to the exclusion of a law of a State or Territory if the law is prescribed in regulations made for the purposes of this subsection. Subdivision C—Declarations about existence of de facto relationships 90RD Declarations about existence of de facto relationships (1) If: (a) an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and (b) a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person; the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons. (2) A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following: (a) the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a); (b) whether there is a child of the de facto relationship; (c) whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); (d) when the de facto relationship ended; (e) where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship. Note: For child of a de facto relationship, see section 90RB. 90RE Effect of declarations (1) A section 90RD declaration has effect as a judgment of the court. (2) For the purposes of this Act (other than Part VII), a section 90RD declaration has effect according to its terms. 90RF Applying for declarations Any party to the primary proceedings may apply for a section 90RD declaration. 90RG Geographical requirement A court may make a section 90RD declaration only if the court is satisfied that a person referred to in paragraph 90RD(1)(b), or both of those persons, were ordinarily resident in a participating jurisdiction when the primary proceedings commenced. 90RH Setting aside declarations (1) If, in the primary proceedings, a person (the affected person) affected by a section 90RD declaration made in those proceedings applies under this subsection, and the court is satisfied that: (a) a fact or circumstance has arisen that has not previously been disclosed to the court; and (b) if the affected person was a party to the primary proceedings at the time the application for the declaration was made—the fact or circumstance was not within the affected person's knowledge at that time; the court may do any of the following: (c) vary the declaration; (d) set the declaration aside; (e) set the declaration aside and make another section 90RD declaration in substitution for the declaration so set aside. (2) The setting aside of a declaration does not affect anything done in reliance on the declaration while it remained in force. (3) If the court sets aside a section 90RD declaration, the court may, on application by the affected person or any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of placing as far as practicable any person affected by the setting aside of the declaration in the same position as that person would have been in if the declaration had not been made. Division 2—Maintenance, declarations of property interests and alterations of property interests Subdivision A—Application of Division 90SA This Division does not apply to certain matters covered by binding financial agreements (1) This Division does not apply to any of the following matters to which a Part VIIIAB financial agreement that is binding on the parties to the agreement applies: (a) the maintenance of one of the spouse parties; (b) the property of the spouse parties or of either of them; (c) the financial resources of the spouse parties or of either of them. (2) Subsection (1) does not apply in relation to: (a) proceedings between: (i) a party to a de facto relationship; and (ii) the bankruptcy trustee of a bankrupt party to the de facto relationship; with respect to the maintenance of the first‑mentioned party after the breakdown of the de facto relationship; or (b) proceedings between: (i) a party to a de facto relationship; and (ii) the bankruptcy trustee of a bankrupt party to the de facto relationship; with respect to the distribution, after the breakdown of the de facto relationship, of any vested bankruptcy property in relation to the bankrupt party. (3) Despite subsection (1), a party to a de facto relationship is not prevented from bringing property settlement proceedings under this Part if a Part VIIIAB financial agreement is not binding on that party. Example: Before Amy and Ben's de facto relationship breaks down, Ben and Cathy make a Part VIIIAB financial agreement. Ben and Cathy's Part VIIIAB financial agreement does not prevent Amy from bringing property settlement proceedings against Ben. 90SB When this Division applies—length of relationship etc. A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied: (a) that the period, or the total of the periods, of the de facto relationship is at least 2 years; or (b) that there is a child of the de facto relationship; or (c) that: (i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and (ii) a failure to make the order or declaration would result in serious injustice to the applicant; or (d) that the relationship is or was registered under a prescribed law of a State or Territory. Note: For child of a de facto relationship, see section 90RB. 90SC This Division ceases to apply in relation to a de facto relationship if the parties marry each other (1) This Division (other than subsections 90SJ(2) to (5)) ceases to apply in relation to a de facto relationship if the parties to the de facto relationship later marry each other. (2) Despite subsection (1), a declaration, order or injunction: (a) made in property settlement proceedings under this Division in relation to the de facto relationship; and (b) in force when the parties marry each other; may, after the marriage, be enforced, varied or set aside in accordance with this Act. (3) If a declaration, order or injunction is set aside as described in subsection (2), another declaration, order or injunction may be made under this Division in substitution for that declaration, order or injunction. Subdivision B—Maintenance 90SD Geographical requirement (1) A court may make an order under section 90SE or 90SG in relation to a de facto relationship only if the court is satisfied: (a) that either or both of the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the order was made (the application time); and (b) that either: (i) both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or (ii) the applicant for the order made substantial contributions, in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); in one or more States or Territories that are participating jurisdictions at the application time; or that the alternative condition in subsection (1A) is met. (1A) The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down. (2) For the purposes of paragraph (1)(b), a State need not have been a participating jurisdiction during the de facto relationship. (3) If each State is a referring State, the Governor‑General may, by Proclamation, fix a day as the day on which paragraph (1)(b), and the alternative condition in subsection (1A), cease to apply in relation to new applications. Note: Paragraph (1)(b) and subsection (1A) will continue to apply in relation to applications made before the proclaimed day. (4) If: (a) a Proclamation under subsection (3) is in force; and (b) a State ceases to be a referring State on a particular day; the Proclamation is revoked by force of this subsection on and from that day. (5) If, under subsection (4), a Proclamation under subsection (3) is revoked: (a) this section has effect as if the revoked Proclamation had not been made; but (b) the effect of the revoked Proclamation on applications made before the specified day is not affected. 90SE Power of court in maintenance proceedings (1) After the breakdown of a de facto relationship, a court may make such order as it considers proper for the maintenance of one of the parties to the de facto relationship in accordance with this Division. Note 1: The geographical requirement in section 90SD must be satisfied. Note 2: The court must be satisfied of at least one of the matters in section 90SB. (2) If: (a) an application is made for an order under this section in proceedings between the parties to a de facto relationship with respect to the maintenance of a party to the de facto relationship; and (b) either of the following subparagraphs apply to a party to the de facto relationship: (i) when the application was made, the party was a bankrupt; (ii) after the application was made but before the proceedings are finally determined, the party became a bankrupt; and (c) the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and (d) the court is satisfied that the interests of the bankrupt's creditors may be affected by the making of an order under this section in the proceedings; the court must join the bankruptcy trustee as a party to the proceedings. (3) If, under subsection (2), a bankruptcy trustee is a party to proceedings with respect to the maintenance of a party to a de facto relationship, then, except with the leave of the court, the bankrupt party to the de facto relationship is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party. (4) The court must not grant leave under subsection (3) unless the court is satisfied that there are exceptional circumstances. (5) If: (a) an application is made for an order under this section in proceedings between the parties to a de facto relationship with respect to the maintenance of a party to the de facto relationship; and (b) either of the following subparagraphs apply to a party to the de facto relationship (the debtor party): (i) when the application was made, the debtor party was a debtor subject to a personal insolvency agreement; (ii) after the application was made but before it is finally determined, the debtor party becomes a debtor subject to a personal insolvency agreement; and (c) the trustee of the agreement applies to the court to be joined as a party to the proceedings; and (d) the court is satisfied that the interests of the debtor party's creditors may be affected by the making of an order under this section in the proceedings; the court must join the trustee of the agreement as a party to the proceedings. (6) If, under subsection (5), the trustee of a personal insolvency agreement is a party to proceedings with respect to the maintenance of a party to a de facto relationship, then, except with the leave of the court, the debtor party is not entitled to make a submission to the court in connection with any property subject to the agreement. (7) The court must not grant leave under subsection (6) unless the court is satisfied that there are exceptional circumstances. (8) For the purposes of subsections (2) and (5), an application for an order under this section is taken to be finally determined when: (a) the application is withdrawn or dismissed; or (b) an order (other than an interim order) is made as a result of the application. 90SF Matters to be taken into consideration in relation to maintenance (1) In exercising jurisdiction under section 90SE (after being satisfied of the matters in subsections 44(5) and (6) and sections 90SB and 90SD), the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship: (a) only to the extent that the first‑mentioned party is reasonably able to do so; and (b) only if the second‑mentioned party is unable to support himself or herself adequately whether: (i) by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or (ii) by reason of age or physical or mental incapacity for appropriate gainful employment; or (iii) for any other adequate reason. Note: For child of a de facto relationship, see section 90RB. (2) In applying this principle, the court must take into account only the matters referred to in subsection (3). (3) The matters to be so taken into account are: (a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship); and (b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and (c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and (d) commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain; and (e) the responsibilities of either party to support any other person; and (f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party; and (g) a standard of living that in all the circumstances is reasonable; and (h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and (i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and (j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and (k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and (l) the need to protect a party who wishes to continue that party's role as a parent; and (m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and (n) the terms of any order made or proposed to be made under section 90SM in relation to: (i) the property of the parties; or (ii) vested bankruptcy property in relation to a bankrupt party; and (o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to: (i) a party to the subject de facto relationship (in relation to another de facto relationship); or (ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and (p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to: (i) a party to the subject de facto relationship; or (ii) a person who is a party to a marriage with a party to the subject de facto relationship; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and (q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and (r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and (s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and (t) the terms of any financial agreement that is binding on a party to the subject de facto relationship. (4) In exercising its jurisdiction under section 90SE, a court must disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit. 90SG Urgent maintenance cases If, in proceedings with respect to the maintenance of a party to a de facto relationship in accordance with this Division, it appears to the court that: (a) the party is in immediate need of financial assistance; and (b) it is not practicable in the circumstances to determine immediately what order, if any, should be made; the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable. Note 1: The geographical requirement in section 90SD must be satisfied. Note 2: The court must be satisfied of at least one of the matters in section 90SB. 90SH Specification in orders of payments etc. for maintenance purposes (1) If: (a) a court makes an order under this Act (whether or not the order is made in proceedings in relation to the maintenance of a party to a de facto relationship in accordance with this Division, is made by consent or varies an earlier order), and the order has the effect of requiring: (i) payment of a lump sum, whether in one amount or by instalments; or (ii) the transfer or settlement of property; and (b) the purpose, or one of the purposes, of the payment, transfer or settlement is to make provision for the maintenance of a party to a de facto relationship in relation to the breakdown of the de facto relationship; the court must: (c) express the order to be an order to which this section applies; and (d) specify the portion of the payment, or the value of the portion of the property, attributable to the maintenance of the party. (2) If: (a) a court makes an order of a kind referred to in paragraph (1)(a); and (b) the order: (i) is not expressed to be an order to which this section applies; or (ii) is expressed to be an order to which this section applies, but does not comply with paragraph (1)(d); any payment, transfer or settlement of a kind referred to in paragraph (1)(a), that the order has the effect of requiring, must be taken not to make provision for the maintenance of a party to the relevant de facto relationship. 90SI Modification of maintenance orders (1) If there is in force an order with respect to the maintenance of a party to a de facto relationship in accordance with this Division: (a) made by the court; or (b) made by another court and registered in the first‑mentioned court in accordance with the applicable Rules of Court; the court may: (c) discharge the order if there is any just cause for so doing; or (d) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event; or (e) revive wholly or in part an order suspended under paragraph (d); or (f) subject to subsection (3), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner. (2) The court's jurisdiction under subsection (1) may be exercised: (a) in any case—in proceedings with respect to the maintenance of a party to the de facto relationship in accordance with this Division; or (b) if there is a bankrupt party to the de facto relationship—on the application of the bankruptcy trustee; or (c) if a party to the de facto relationship is a debtor subject to a personal insolvency agreement—on the application of the trustee of the agreement. (3) The court must not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied: (a) that, since the order was made or last varied: (i) the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship); or (ii) the circumstances of the person liable to make payments under the order have so changed; or (iii) in the case of an order that operates in favour of, or is binding on, a legal personal representative—the circumstances of the estate are such; as to justify its so doing; or (b) that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing; or (c) in a case where the order was made by consent—that the amount ordered to be paid is not proper or adequate; or (d) that: (i) material facts were withheld from the court that made the order, or from a court that varied the order; or (ii) material evidence previously given before such a court was false. (4) In satisfying itself for the purposes of paragraph (3)(b), the court must have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician. (5) The court must not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living. (6) In satisfying itself for the purposes of paragraph (3)(c), the court must have regard to any payments, and any transfer or settlement of property, previously made by a party to the de facto relationship, or by the bankruptcy trustee of a party to the de facto relationship, to: (a) the other party; or (b) any other person for the benefit of the other party. (7) An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate. (8) If, as provided by subsection (7), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any money paid under the second‑mentioned order since the specified date, being money that would not have been required to be paid under the second‑mentioned order as varied by the first‑mentioned order, may be recovered in a court having jurisdiction under this Act. (9) If, as provided by subsection (7), an order discharging an order is expressed to be retrospective to a specified date, any money paid under the second‑mentioned order since the specified date may be recovered in a court having jurisdiction under this Act. (10) For the purposes of this section, the court must have regard to the provisions of section 90SF. (11) The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect. 90SJ Cessation of maintenance orders (1) An order with respect to the maintenance of a party to a de facto relationship in accordance with this Division ceases to have effect upon: (a) the death of the party; or (b) the death of the person liable to make payments under the order. (2) An order with respect to the maintenance of a party to a de facto relationship in accordance with this Division ceases to have effect upon the marriage of the party unless in special circumstances a court having jurisdiction under this Act otherwise orders. (3) If a marriage referred to in subsection (2) takes place, it is the duty of the person for whose benefit the order was made to inform without delay the person liab