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Family Law Amendment (Financial Agreements and Other Measures) Bill 2015

Schedule 1 Binding financial agreements

   

Family Law Act 1975

1  Before section 90A

Insert:

90AL   Simplified outline of this Part

Persons who are contemplating marrying, are in a marriage or have divorced may agree on either or both of the following:

       (a)     how the property or financial resources of either or both of the persons at a time before divorce are to be dealt with if the marriage breaks down;

      (b)     the maintenance of either of the persons during or after the marriage.

Such an agreement is binding if the persons have each received independent legal advice about the agreement before making it or a court declares that the agreement is binding.

If an agreement is binding, a court can enforce it and cannot make an order under Part VIII about property, financial resources or maintenance covered by the agreement.

There are some limits on what provisions may be included in an agreement and when they have effect.

There are also some rules affecting proceedings to enforce an agreement if a law about proceeds of crime applies to property of either or both of the persons who made the agreement.

An agreement may be terminated by a later agreement made by the persons, if they have each received independent legal advice about the termination, or may be set aside by a court in certain limited circumstances.

90AM   Object of this Part and principles underlying it

             (1)  The object of this Part is to provide for prospective, current or former parties to a marriage to make a binding agreement about either or both of the following matters that excludes the power of a court to make orders under Part VIII about those matters:

                     (a)  how property or financial resources either or both parties had before divorce are to be dealt with if the marriage breaks down;

                     (b)  the maintenance of either party during the marriage or after divorce.

Note:          Section 71A provides that Part VIII does not apply to financial matters or financial resources to which a financial agreement binding on the parties applies.

             (2)  The principles underlying this object are that:

                     (a)  prospective, current or former parties to a marriage should be able to take responsibility for resolving the matters described in paragraphs (1)(a) and (b) without involving a court; and

                     (b)  such parties who make an agreement about those matters should have certainty that the agreement will bind those parties unless:

                              (i)  they make another agreement to terminate the earlier agreement; or

                             (ii)  a court sets the agreement aside under this Act.

2  Section 90E

Before “A provision”, insert “(1)”.

3  Paragraph 90E(b)

Omit “the value of the portion”, substitute “the amount or proportion of the value”.

4  At the end of section 90E

Add:

             (2)  Any amount, or proportion, described in paragraph (1)(b) may be nil in relation to a person, or in circumstances, specified in the agreement.

5  Application of amendments of section 90E

(1)       The amendments of section 90E of the Family Law Act 1975 made by this Schedule apply in relation to financial agreements made before, on or after the commencement of the amendments.

(2)       However, those amendments do not make a provision of a financial agreement valid if, before the commencement of those amendments, a court made an order under the Family Law Act 1975 on the basis that the provision was void because of section 90E of that Act.

6  Section 90G

Repeal the section, substitute:

90G   When financial agreements are binding

General rule

             (1)  For the purposes of this Act, a financial agreement made after 26 December 2000 is binding on the parties to the agreement if and only if:

                     (a)  the agreement is signed by all parties; and

                     (b)  either:

                              (i)  all the conditions in section 90GA (about legal advice relating to the agreement) that are relevant to the agreement are met; or

                             (ii)  a court has made an order under section 90GB declaring that the agreement is binding; and

                     (c)  the agreement has not been terminated (before, on or after the commencement of this section); and

                     (d)  the agreement has not been set aside by a court (before, on or after the commencement of this section).

Note 1:       This Part commenced on 27 December 2000.

Note 2:       Section 90J deals with termination of a financial agreement.

Note 3:       Section 90K deals with a court setting aside a financial agreement.

Note 4:       For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995 .

Power of court to enforce binding financial agreement

             (2)  A court may make such orders for the enforcement of a financial agreement that is binding on the parties to the agreement as it thinks necessary.

90GA   Conditions relating to legal advice for financial agreement or termination agreement to be binding

             (1)  For the purposes of subparagraphs 90G(1)(b)(i) and 90J(2)(b)(i), this section describes conditions for a financial agreement, or a written agreement to terminate a financial agreement, to be binding.

Note 1:       The conditions all relate to the provision of independent legal advice to each spouse party before the agreement was made, but vary according to when the agreement was made.

Note 2:       Section 90G describes other conditions that need to be met for a financial agreement to be binding. Section 90J describes other conditions that need to be met for a written agreement to terminate a financial agreement to be binding.

Note 3:       If the conditions described in this section are not met but the other conditions described in section 90G or 90J are, the agreement will be binding if a court declares under section 90GB that the agreement is binding.

Statement about legal advice given before agreement signed

             (2)  A condition for an agreement made after 26 December 2000 is that, either before or after signing the agreement, each spouse party was provided with a signed statement by a legal practitioner that, before the agreement was signed, he or she provided that party with independent legal advice about the matters described in the following table for the agreement.

 

Independent legal advice about agreements made after 26 December 2000

 

When agreement was made

Matters

1

Before 14 January 2004

(a) the effect of the agreement on the rights of that party; and

(b) whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement; and

(c) whether or not, at that time, it was prudent for that party to make the agreement; and

(d) whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable

2

14 January 2004 to 3 January 2010 (inclusive)

Either the matters set out in item 1 or the matters set out in item 3

3

4 January 2010 to the day before this section commenced (inclusive)

(a) the effect of the agreement on the rights of that party; and

(b) the advantages and disadvantages, at the time the advice was provided, to that party of making the agreement

4

After (or when) this section commenced

The effect of the agreement on the rights of that party under this Act

Note 1:       The first 3 periods reflect the periods when the precursors to this section made different provision for the matters to be dealt with in independent legal advice about agreements. The matters for each of those 3 periods reflect the provision the relevant precursor made for that period.

Note 2:       This section commenced on the commencement of Schedule 1 to the Family Law Amendment (Financial Agreements and Other Measures) Act 2015 .

Note 3:       For an agreement made before 4 January 2010, the statement may have been provided by the legal practitioner in the form of a certificate annexed to the agreement.

Extra conditions for agreements made after 3 January 2010

             (3)  The following table sets out extra conditions for agreements made after 3 January 2010.

 

Extra conditions for agreements made after 3 January 2010

 

When agreement was made

Extra conditions

1

Before this section commenced

The statement provided to a spouse party as described in subsection (2) is also given to the other spouse party or to a legal practitioner for the other spouse party

2

After (or when) this section commenced

(a) the statement provided to a spouse party (the first party ) as described in subsection (2) is also given to the other spouse party or to a legal practitioner for the other spouse party; and

(b) either before or after signing the agreement, the first party has made a written acknowledgement that, before signing the agreement, he or she was provided with independent legal advice about the effect of the agreement on his or her rights under this Act; and

(c) the acknowledgement is also given to the other spouse party or to a legal practitioner for the other spouse party

Agreement, statement and acknowledgement may be separate

             (4)  For the purposes of subsections (2) and (3), it does not matter whether or not:

                     (a)  the statement is annexed to the agreement; or

                     (b)  the acknowledgement (if relevant) is in the same document as, or annexed to, either the statement or the agreement.

Court not to consider provision of independent legal advice

             (5)  In determining whether an agreement is binding, a court is not to consider whether advice described in subsection (2) was actually provided.

90GB   Court declaring financial agreement or termination agreement to be binding

             (1)  This section applies if:

                     (a)  a spouse party makes an application (the enforcement application ) to a court for an order declaring that a financial agreement, or a written agreement to terminate a financial agreement, is binding on the parties to the agreement; and

                     (b)  not all of the relevant conditions in section 90GA for the agreement to be binding are met.

             (2)  The court must make the order if it is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made).

Principles to be applied by court making declaration

             (3)  To avoid doubt, section 90KA applies in relation to the enforcement application.

7  Section 90H

Before “A financial”, insert “(1)”.

8  At the end of section 90H

Add:

Cessation of maintenance on death of payee or payer

             (2)  However, a provision of a financial agreement (the maintenance provision ) for the maintenance of a spouse party to the agreement ceases to have effect on the death of:

                     (a)  the spouse party; or

                     (b)  the person liable under the agreement for the maintenance.

             (3)  Subsection (2) does not apply so far as the agreement provides that the maintenance provision continues to have effect despite the death.

             (4)  Subsection (2) does not prevent the recovery of arrears of maintenance due under the maintenance provision immediately before the death mentioned in that subsection.

Recovery of amount paid after cessation

             (5)  If an amount is paid purportedly under the maintenance provision after it ceases to have effect under subsection (2), the amount may be recovered, by action in a court:

                     (a)  by:

                              (i)  the person who was, immediately before the cessation, liable under the agreement for maintenance of the spouse party; or

                             (ii)  that person’s legal personal representative if that person has died; and

                     (b)  from:

                              (i)  the spouse party; or

                             (ii)  the spouse party’s legal personal representative if the spouse party has died.

Note:          As the action is a matrimonial cause, section 39 specifies the courts that have jurisdiction, subject to the rest of Part V.

9  Application of amendments of section 90H

Subsections 90H(2), (3), (4) and (5) of the Family Law Act 1975 apply to financial agreements made on or after the commencement of the subsections.

10  After section 90H

Insert:

90HA   Maintenance of spouse party who remarries or enters into de facto relationship

             (1)  A provision of a financial agreement (the maintenance provision ) for the maintenance of a spouse party to the agreement ceases to have effect when the spouse party:

                     (a)  marries again; or

                     (b)  enters into a de facto relationship with someone other than the other spouse party.

             (2)  Subsection (1) does not apply so far as the agreement provides that the maintenance provision continues to have effect despite the later marriage or entry into a de facto relationship.

             (3)  Subsection (1) does not prevent the recovery of arrears of maintenance due under the maintenance provision immediately before the later marriage or entry into the de facto relationship.

Notice of remarriage or entry into de facto relationship

             (4)  If the maintenance provision ceases to have effect under subsection (1), the spouse party must inform without delay the person who was liable under the agreement for the maintenance of the spouse party of the date of the later marriage or entry into the de facto relationship.

Recovery of amount paid after cessation

             (5)  If an amount is paid purportedly under the maintenance provision after it ceases to have effect under subsection (1), the amount may be recovered, by action in a court:

                     (a)  by:

                              (i)  the person who was, immediately before the cessation, liable under the agreement for maintenance of the spouse party; or

                             (ii)  that person’s legal personal representative if that person has died; and

                     (b)  from:

                              (i)  the spouse party; or

                             (ii)  the spouse party’s legal personal representative if the spouse party has died.

Note:          As the action is a matrimonial cause, section 39 specifies the courts that have jurisdiction, subject to the rest of Part V.

11  Application of section 90HA

Section 90HA of the Family Law Act 1975 applies in relation to financial agreements made on or after the commencement of that section.

12  Section 90J

Repeal the section, substitute:

90J   Termination of financial agreement

Termination only by agreement

             (1)  The parties to a financial agreement made after 26 December 2000 may terminate the agreement only by later:

                     (a)  including a provision to that effect in another financial agreement as mentioned in subsection 90B(4), 90C(4) or 90D(4); or

                     (b)  making a written agreement (the termination agreement ) to that effect.

Conditions for termination agreement to be binding

             (2)  For the purposes of this Act, the termination agreement (whether made before, on or after the commencement of this section) is binding on the parties if and only if:

                     (a)  the agreement is signed by all parties to the agreement; and

                     (b)  either:

                              (i)  all the conditions in section 90GA (about legal advice relating to the agreement) that are relevant to the agreement are met; or

                             (ii)  a court has made an order under section 90GB declaring that the agreement is binding; and

                     (c)  the agreement has not been set aside by a court (before, on or after the commencement of this section).

Court orders after termination of financial agreement

             (3)  A court may, on an application by a person who was a party to the financial agreement that has been terminated, or by 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 preserving or adjusting the rights of persons who were parties to that financial agreement and any other interested persons.

Note:          For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995 .

13  Transitional and saving provisions relating to sections 90G and 90J of the Family Law Act 1975

Transitional provisions for court orders

(1)       An order made by a court under subsection 90G(1B) or 90J(2B) of the Family Law Act 1975 before the repeal of those subsections by this Schedule has effect on and after that repeal as if the order had been made under section 90GB of that Act (as amended by this Schedule).

(2)       The repeal and substitution of section 90G of the Family Law Act 1975 by this Schedule does not affect the validity of an order made by a court under subsection 90G(2) of that Act before the repeal.

(3)       The repeal and substitution of section 90J of the Family Law Act 1975 by this Schedule does not affect the validity of an order made by a court under subsection 90J(3) of that Act before the repeal.

Effect of other court orders made on basis that financial agreement was not binding

(4)       Despite sections 90G, 90GA, 90GB and 90J of the Family Law Act 1975 (as amended by this Schedule), a financial agreement made before the commencement of those sections does not bind the parties to the agreement for the purposes of that Act if, before that commencement, a court made an order under section 79 or 83 of that Act on the basis that the agreement did not bind the parties.

14  Paragraph 90K(1)(d)

Repeal the paragraph, substitute:

                     (d)  if the court does not set the agreement aside:

                              (i)  a child of the marriage; or

                             (ii)  if the applicant has caring responsibility (as defined in subsection (2)) for a child of the marriage—a party to the agreement;

                            will suffer hardship for a reason described in subsection (2A); or

15  Paragraph 90K(1)(f)

Omit “Part; or”, substitute “Part.”.

16  Paragraph 90K(1)(g)

Repeal the paragraph.

17  After subsection 90K(2)

Insert:

          (2A)  For the purposes of paragraph (1)(d) applying to an agreement described in column 1 of an item of the following table, the reason for hardship is the reason described in column 2 of the item.

 

Reason for hardship if agreement is not set aside

 

Column 1

Agreement

Column 2

Reason

1

A financial agreement that:

(a) is expressed to be made under section 90B; or

(b) is expressed to be made under section 90C and was made before the making of a separation declaration described in subsection 90DA(2) relating to the spouse parties to the agreement

The occurrence, after the making of the agreement, of a material change in circumstances that relate to the care, welfare and development of the child of the marriage

2

A financial agreement that:

(a) is expressed to be made under section 90C and was made at the same time as, or after, the making of a separation declaration described in subsection 90DA(2) relating to the spouse parties to the agreement; or

(b) is expressed to be made under section 90D;

or a termination agreement

The arising, after the making of the agreement, of circumstances that:

(a) are of an exceptional nature; and

(b) relate to the care, welfare and development of the child of the marriage

18  Application of amendments of section 90K

(1)       The amendments of section 90K of the Family Law Act 1975 made by this Schedule apply to agreements made on or after the commencement of the amendments.

(2)       The repeal of paragraph 90K(1)(g) of the Family Law Act 1975 by this Schedule also applies to agreements made before the repeal.

(3)       However, that repeal does not affect the validity of an order made by a court under paragraph 90K(1)(g) of the Family Law Act 1975 before that repeal.

19  Before section 90UA

Insert:

90UAA   Simplified outline of this Division

Persons who reside in certain States or in a Territory and either are contemplating entering into a de facto relationship or are or were in such a relationship may agree on either or both of the following:

       (a)     how the property or financial resources of either or both of the persons at a time before the breakdown of the relationship are to be dealt with on that breakdown;

      (b)     the maintenance of either of the persons after a breakdown of the relationship.

Such an agreement is binding if the persons have each received independent legal advice about the agreement before making it or a court declares that the agreement is binding.

If an agreement is binding, a court can enforce it and cannot make an order under Division 2 about property, financial resources or maintenance covered by the agreement.

There are some limits on what provisions may be included in an agreement and when they have effect.

An agreement may be terminated by a later agreement made by the persons, if they have each received independent legal advice about the termination, or may be set aside by a court in certain limited circumstances.

90UAB   Object of this Division and principles underlying it

             (1)  The object of this Division is to provide for prospective, current or former parties to a de facto relationship to make a binding agreement about either or both of the following matters that excludes the power of a court to make orders under Division 2 about those matters:

                     (a)  how, in the event of a breakdown of the relationship, property or financial resources either or both parties had before the breakdown are to be dealt with;

                     (b)  the maintenance of either party in the event of a breakdown of the relationship.

Note:          Section 90SA provides that Division 2 does not apply to maintenance, property or financial resources to which a Part VIIIAB financial agreement binding on the parties applies.

             (2)  The principles underlying this object are that:

                     (a)  prospective, current or former parties to a de facto relationship should be able to take responsibility for resolving the matters described in paragraphs (1)(a) and (b) without involving a court; and

                     (b)  such parties who make an agreement about those matters should have certainty that the agreement will bind those parties unless:

                              (i)  they make another informed agreement to terminate the earlier agreement; or

                             (ii)  a court sets the agreement aside under this Act.

20  Paragraph 90UH(1)(b)

Omit “the value of the portion”, substitute “the amount or proportion of the value”.

21  After subsection 90UH(1)

Insert:

          (1A)  Any amount, or proportion, described in paragraph (1)(b) may be nil in relation to a person, or in circumstances, specified in the agreement.

22  Application of amendments of section 90UH

(1)       The amendments of section 90UH of the Family Law Act 1975 made by this Schedule apply in relation to Part VIIIAB financial agreements made before, on or after the commencement of the amendments.

(2)       However, those amendments do not make a provision of a Part VIIIAB financial agreement valid if, before the commencement of those amendments, a court made an order under the Family Law Act 1975 on the basis that the provision was void because of section 90UH of that Act.

23  Section 90UJ

Repeal the section, substitute:

90UJ   When financial agreements are binding

             (1)  For the purposes of this Act, a Part VIIIAB financial agreement (except one covered by section 90UE) made after 28 February 2009 is binding on the parties to the agreement if and only if:

                     (a)  the agreement is signed by all parties; and

                     (b)  either:

                              (i)  all the conditions in section 90UJA (about legal advice relating to the agreement) that are relevant to the agreement are met; or

                             (ii)  a court has made an order under section 90UJB declaring that the agreement is binding; and

                     (c)  the agreement has not been terminated (before, on or after the commencement of this section); and

                     (d)  the agreement has not been set aside by a court (before, on or after the commencement of this section).

Note 1:       This Division commenced on 1 March 2009.

Note 2:       Section 90UL deals with termination of a Part VIIIAB financial agreement.

Note 3:       Section 90UM deals with a court setting aside a Part VIIIAB financial agreement.

Note 4:       For the manner in which the contents of a Part VIIIAB financial agreement may be proved, see section 48 of the Evidence Act 1995 .

             (2)  A Part VIIIAB financial agreement covered by section 90UE is binding on the parties to the agreement if, and only if, the agreement has not been terminated and has not been set aside by a court.

Note 1:       This subsection (rather than subsection (1)) also applies to an agreement that is treated as a Part VIIIAB financial agreement because of item 87, 88, 91 or 92 of Schedule 1 to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 : see item 93 of that Schedule.

Note 2:       Items 87 and 88 of that Schedule deal with certain agreements made before 1 March 2009 under a law of a State (except Western Australia and South Australia) or Territory about financial matters that:

(a)    relate to the parties to de facto relationships; and

(b)    arise out of the breakdown of those relationships.

Note 3:       Items 91 and 92 of that Schedule deal with certain agreements made:

(a)    before 1 July 2010 under a law of South Australia about such matters; or

(b)    if, on a particular day, Western Australia becomes a referring State—before that day under a law of Western Australia about such matters.

             (3)  A Part VIIIAB financial agreement ceases to be binding if, after making the agreement, the parties to the agreement marry each other.

Power of court to enforce binding Part VIIIAB financial agreement

             (4)  A court may make such orders for the enforcement of a Part VIIIAB financial agreement that is binding on the parties to the agreement as it thinks necessary.

90UJA   Conditions relating to legal advice for financial agreement or termination agreement to be binding

             (1)  For the purposes of subparagraphs 90UJ(1)(b)(i) and 90UL(2)(b)(i), this section describes conditions for a Part VIIIAB financial agreement (except one covered by section 90UE), or a written agreement to terminate a Part VIIIAB financial agreement, to be binding.

Note 1:       The conditions all relate to the provision of independent legal advice to each spouse party before the agreement was made, but vary according to when the agreement was made.

Note 2:       Section 90UJ describes other conditions that need to be met for a Part VIIIAB financial agreement to be binding. Section 90UL describes other conditions that need to be met for a written agreement to terminate a Part VIIIAB financial agreement to be binding.

Note 3:       If the conditions described in this section are not met but the other conditions described in section 90UJ or 90UL are, the agreement will be binding if a court declares under section 90UJB that the agreement is binding.

Statement about legal advice given before agreement signed

             (2)  A condition for an agreement made after 28 February 2009 is that, either before or after signing the agreement, each spouse party was provided with a signed statement by a legal practitioner that, before the agreement was signed, he or she provided that party with independent legal advice about the matters described in the following table for the agreement.

 

Independent legal advice about agreements made after 28 February 2009

 

When agreement was made

Matters

1

Before this section commenced

(a) the effect of the agreement on the rights of that party; and

(b) the advantages and disadvantages, at the time the advice was provided, to that party of making the agreement

2

After (or when) this section commenced

The effect of the agreement on the rights of that party under this Act

Note 1:       The first period is when the precursors to this section made different provision for the matters to be dealt with in independent legal advice about agreements. The matters for that period reflect the provision the precursors made for that period.

Note 2:       This section commenced on the commencement of Schedule 1 to the Family Law Amendment (Financial Agreements and Other Measures) Act 2015 .

Note 3:       For an agreement made before 4 January 2010, the statement may have been provided by the legal practitioner in the form of a certificate annexed to the agreement.

Extra conditions for agreements made after 3 January 2010

             (3)  The following table sets out extra conditions for agreements made after 3 January 2010.

 

Extra conditions for agreements made after 3 January 2010

 

When agreement was made

Extra conditions

1

Before this section commenced

The statement provided to a spouse party as described in subsection (2) is also given to the other spouse party or to a legal practitioner for the other spouse party

2

After (or when) this section commenced

(a) the statement provided to a spouse party (the first party ) as described in subsection (2) is also given to the other spouse party or to a legal practitioner for the other spouse party; and

(b) either before or after signing the agreement, the first party has made a written acknowledgement that, before signing the agreement, he or she was provided with independent legal advice about the effect of the agreement on his or her rights under this Act; and

(c) the acknowledgement is also given to the other spouse party or to a legal practitioner for the other spouse party

Agreement, statement and acknowledgement may be separate

             (4)  For the purposes of subsections (2) and (3), it does not matter whether or not:

                     (a)  the statement is annexed to the agreement; or

                     (b)  the acknowledgement (if relevant) is in the same document as, or annexed to, either the statement or the agreement.

Court not to consider provision of independent legal advice

             (5)  In determining whether an agreement is binding, a court is not to consider whether advice described in subsection (2) was actually provided.

90UJB   Court declaring financial agreement or termination agreement to be binding

             (1)  This section applies if:

                     (a)  a spouse party makes an application (the enforcement application ) to a court for an order declaring that a Part VIIIAB financial agreement, or a written agreement to terminate a Part VIIIAB financial agreement, is binding on the parties to the agreement; and

                     (b)  not all of the relevant conditions in section 90UJA for the agreement to be binding are met.

             (2)  The court must make the order if it is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made).

Principles to be applied by court making declaration

             (3)  To avoid doubt, section 90UN applies in relation to the enforcement application.

24  Section 90UK

Before “A Part”, insert “(1)”.

25  At the end of section 90UK

Add:

Cessation of maintenance on death of payee or payer

             (2)  However, a provision of a Part VIIIAB financial agreement (the maintenance provision ) for the maintenance of a spouse party to the agreement ceases to have effect on the death of:

                     (a)  the spouse party; or

                     (b)  the person liable under the agreement for the maintenance.

             (3)  Subsection (2) does not apply so far as the agreement provides that the maintenance provision continues to have effect despite the death.

             (4)  Subsection (2) does not prevent the recovery of arrears of maintenance due under the maintenance provision immediately before the death mentioned in that subsection.

Recovery of amount paid after cessation

             (5)  If an amount is paid purportedly under the maintenance provision after it ceases to have effect under subsection (2), the amount may be recovered, by action in a court:

                     (a)  by:

                              (i)  the person who was, immediately before the cessation, liable under the agreement for maintenance of the spouse party; or

                             (ii)  that person’s legal personal representative if that person has died; and

                     (b)  from:

                              (i)  the spouse party; or

                             (ii)  the spouse party’s legal personal representative if the spouse party has died.

Note:          As the action is a de facto financial cause, section 39B specifies the courts that have jurisdiction, subject to the rest of Part V.

26  Application of amendments of section 90UK

Subsections 90UK(2), (3), (4) and (5) of the Family Law Act 1975 apply to Part VIIIAB financial agreements made on or after the commencement of the subsections.

27  After section 90UK

Insert:

90UKA   Maintenance of spouse party who enters into another de facto relationship or marries

             (1)  A provision of a Part VIIIAB financial agreement (the maintenance provision ) for the maintenance of a spouse party to the agreement ceases to have effect when the spouse party:

                     (a)  enters into a de facto relationship with someone other than the other spouse party; or

                     (b)  marries.

             (2)  Subsection (1) does not apply so far as the agreement provides that the maintenance provision continues to have effect despite the later entry into a de facto relationship or marriage.

             (3)  Subsection (1) does not prevent the recovery of arrears of maintenance due under the maintenance provision immediately before the later entry into the de facto relationship or marriage.

Notice of later entry into de facto relationship or marriage

             (4)  If the maintenance provision ceases to have effect under subsection (1), the spouse party must inform without delay the person who was liable under the provision for the maintenance of the spouse party of the date of the later entry into the de facto relationship or marriage.

Recovery of amount paid after cessation

             (5)  If an amount is paid purportedly under the maintenance provision after it ceases to have effect under subsection (1), the amount may be recovered, by action in a court:

                     (a)  by:

                              (i)  the person who was, immediately before the cessation, liable under the agreement for maintenance of the spouse party; or

                             (ii)  that person’s legal personal representative if that person has died; and

                     (b)  from:

                              (i)  the spouse party; or

                             (ii)  the spouse party’s legal personal representative if the spouse party has died.

Note:          As the action is a de facto financial cause, section 39B specifies the courts that have jurisdiction, subject to the rest of Part V.

28  Application of section 90UKA

Section 90UKA of the Family Law Act 1975 applies in relation to Part VIIIAB financial agreements made on or after the commencement of that section.

29  Section 90UL

Repeal the section, substitute:

90UL   Termination of financial agreement

Termination only by agreement

             (1)  The parties to a Part VIIIAB financial agreement made after 28 February 2009 may terminate the agreement only by later:

                     (a)  including a provision to that effect in another Part VIIIAB financial agreement as mentioned in subsection 90UB(4), 90UC(4) or 90UD(4); or

                     (b)  making a written agreement (the Part VIIIAB termination agreement ) to that effect.

Conditions for termination agreement to be binding

             (2)  For the purposes of this Act, the Part VIIIAB termination agreement (whether made before, on or after the commencement of this section) is binding on the parties if and only if:

                     (a)  the agreement is signed by all parties to the agreement; and

                     (b)  either:

                              (i)  all the conditions in section 90UJA (about legal advice relating to the agreement) that are relevant to the agreement are met; or

                             (ii)  a court has made an order under section 90UJB declaring that the agreement is binding; and

                     (c)  the agreement has not been set aside by a court (before, on or after the commencement of this section).

Court orders after termination of financial agreement

             (3)  A court may, on an application by a person who was a party to the Part VIIIAB financial agreement that has been terminated, or by 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 preserving or adjusting the rights of persons who were parties to that Part VIIIAB financial agreement and any other interested persons.

Note:          For the manner in which the contents of a Part VIIIAB financial agreement may be proved, see section 48 of the Evidence Act 1995 .

30  Transitional and saving provisions relating to sections 90UJ and 90UL of the Family Law Act 1975

Transitional provisions for court orders

(1)       An order made by a court under subsection 90UJ(1B) or 90UL(2B) of the Family Law Act 1975 before the repeal of those subsections by this Schedule has effect on and after that repeal as if the order had been made under section 90UJB of that Act (as amended by this Schedule).

(2)       The repeal and substitution of section 90UJ of the Family Law Act 1975 by this Schedule does not affect the validity of an order made by a court under subsection 90UJ(4) of that Act before the repeal.

(3)       The repeal and substitution of section 90UL of the Family Law Act 1975 by this Schedule does not affect the validity of an order made by a court under subsection 90UL(3) of that Act before the repeal.

Effect of other court orders made on basis that financial agreement was not binding

(4)       Despite sections 90UJ, 90UJA, 90UJB and 90UL of the Family Law Act 1975 (as amended by this Schedule), a Part VIIIAB financial agreement made before the commencement of those sections does not bind the parties to the agreement for the purposes of that Act if, before that commencement, a court made an order under section 90SI or 90SM of that Act on the basis that the agreement did not bind the parties.

31  Paragraph 90UM(1)(g)

Repeal the paragraph, substitute:

                     (g)  if the court does not set the agreement aside:

                              (i)  a child of the de facto relationship; or

                             (ii)  if the applicant has caring responsibility (as defined in subsection (4)) for a child of the de facto relationship—a party to the agreement;

                            will suffer hardship for a reason described in subsection (4A); or

32  Paragraph 90UM(1)(j)

Repeal the paragraph.

33  After subsection 90UM(4)

Insert:

          (4A)  For the purposes of paragraph (1)(g) applying to an agreement described in column 1 of an item of the following table, the reason for hardship is the reason described in column 2 of the item.

 

Reason for hardship if agreement is not set aside

 

Column 1

Agreement

Column 2

Reason

1

A Part VIIIAB financial agreement that:

(a) is expressed to be made under section 90UB; or

(b) is expressed to be made under section 90UC and was made before the making of a separation declaration described in subsection 90UF(3) relating to the spouse parties to the agreement

The occurrence, after the making of the agreement, of a material change in circumstances that relate to the care, welfare and development of the child of the de facto relationship

2

A Part VIIIAB financial agreement that:

(a) is expressed to be made under section 90UC and was made at the same time as, or after, the making of a separation declaration described in subsection 90UF(3) relating to the spouse parties to the agreement; or

(b) is expressed to be made under section 90UD;

or a Part VIIIAB termination agreement

The arising, after the making of the agreement, of circumstances that:

(a) are of an exceptional nature; and

(b) relate to the care, welfare and development of the child of the de facto relationship

34  Application of amendments of section 90UM

(1)       The amendments of section 90UM of the Family Law Act 1975 made by this Schedule apply to agreements made on or after the commencement of the amendments.

(2)       The repeal of paragraph 90UM(1)(j) of the Family Law Act 1975 by this Schedule also applies to agreements made before the repeal.

(3)       However, that repeal does not affect the validity of an order made by a court under paragraph 90UM(1)(j) of the Family Law Act 1975 before that repeal.

35  Paragraph 90MG(3)(a)

Repeal the paragraph, substitute:

                     (a)  the requirements set out in whichever one of subsections 90MN(3) and (3A) applies to the agreement are met; and

36  Subsection 90MN(3)

Omit “or termination agreement has no effect unless it complies with the following requirements”, substitute “, or termination agreement, made before the commencement of subsection (3A) has no effect unless the following requirements are met”.

37  At the end of subsection 90MN(3)

Add:

Note:          Subsection (3A) commenced on the commencement of Schedule 1 to the Family Law Amendment (Financial Agreements and Other Measures) Act 2015 .

38  After subsection 90MN(3)

Insert:

          (3A)  A flag lifting agreement, or termination agreement, made on or after the commencement of this subsection has no effect unless the following requirements are met:

                     (a)  the agreement must be signed by both spouses;

                     (b)  after the agreement is signed by the spouses, each spouse must be provided with a copy of the agreement;

                     (c)  either before or after signing the agreement:

                              (i)  each spouse must be provided with a signed statement by a legal practitioner that, before the agreement was signed, he or she provided the spouse with independent legal advice about the effect of the agreement on the rights of the spouse under this Act; and

                             (ii)  each spouse must make a written acknowledgement that, before signing the agreement, he or she was provided with independent legal advice about the effect of the agreement on his or her rights under this Act;

                     (d)  the statement provided to a spouse, and the acknowledgement made by a spouse, as described in paragraph (c) must also be given to the other spouse or to a legal practitioner for the other spouse.