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Bankruptcy and Family Law Legislation Amendment Bill 2005

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2004-2005

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

Bankruptcy and Family Law Legislation Amendment Bill 2004

 

 

(1)     Clause 2, page 2 (table item 4, 1st column), omit “and 4”, substitute “, 4 and 5”.

[interaction between family law and bankruptcy law]

(2)     Page 44 (after line 23), at the end of the Bill, add:

Schedule 5 Additional amendments relating to the interaction between family law and bankruptcy law

   

Family Law Act 1975

1  At the end of section 79

Add:

           (10)  The following are entitled to become a party to proceedings in which an application is made for an order under this section:

                     (a)  a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the order were made;

                     (b)  any other person whose interests would be affected by the making of the order.

2  At the end of section 79A

Add:

             (4)  For the purposes of this section, a creditor of a party to the proceedings in which the order under section 79 was made is taken to be a person whose interests are affected by the order if the creditor may not be able to recover his or her debt because the order has been made.

3  After section 79E

Insert:

79F   Notifying third parties about application

                   The applicable Rules of Court may specify the circumstances in which a person who:

                     (a)  applies for an order under this Part; or

                     (b)  is a party to proceedings for an order under this Part;

is to give notice of the application to a person who is not a party to the proceedings.

4  After section 90D

Insert:

90DA   Need for separation declaration for certain provisions of financial agreement to take effect

             (1)  A financial agreement between 2 people, to the extent to which it deals with:

                     (a)  how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of them at the time when the agreement is made, or at a later time and before the termination of the marriage by divorce, is to be dealt with; or

                     (b)  the maintenance of either of them after the termination of the marriage by divorce;

is of no force or effect until a separation declaration is made.

             (2)  A separation declaration is a written declaration that complies with subsections (3) and (4).

             (3)  The declaration must be signed by at least one of the parties to the financial agreement.

             (4)  The declaration must state that:

                     (a)  the parties have separated and are living separately and apart at the declaration time; and

                     (b)  in the opinion of the parties making the declaration, there is no reasonable likelihood of cohabitation being resumed.

             (5)  In this section:

declaration time means the time when the declaration was signed by a party to the financial agreement (or last signed by a party to the agreement, if both parties to the agreement have signed).

separated has the same meaning as in section 48 (as affected by section 49).

5  After subsection 106B(4)

Insert:

       (4AA)  An application may be made to the court for an order under this section by:

                     (a)  a party to the proceedings; or

                     (b)  a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the instrument or disposition were made; or

                     (c)  any other person whose interests would be affected by the making of the instrument or disposition.

[interaction between family law and bankruptcy law]