Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Family Law Amendment Bill 2000
Schedule 2 Financial agreements

   

Family Law Act 1975

1  Subsection 4(1)

Insert:

financial agreement means an agreement that is a financial agreement under section 90B, 90C or 90D, but does not include an ante-nuptial or post-nuptial settlement to which section 85A applies.

2  Subsection 4(1) (after paragraph (ea) of the definition of matrimonial cause )

Insert:

                  (eaa)  without limiting any of the preceding paragraphs, proceedings between the parties to a marriage with respect to a financial agreement made by them; or

3  Subsection 4(1) (at the end of paragraphs (a), (b), (c), (ca), (d), (e) and (ea) of the definition of matrimonial cause )

Add “or”.

4  After section 71

Insert in Part VIII:

71A   This Part does not apply to certain matters covered by binding financial agreement s

                   This Part does not apply to:

                     (a)  financial matters to which a financial agreement that is binding on the parties to the agreement applies; or

                     (b)  financial resources to which a financial agreement that is binding on the parties to the agreement applies.

5  At the end of subsection 75(2)

Add:

    ; and (p)   the terms of any financial agreement that is binding on the parties.

6  Paragraph 79A(1)(a)

After “suppression of evidence”, insert “(including failure to disclose relevant information)”.

6A  At the end of section 85A

Add:

             (3)  A court cannot make an order under this section in respect of matters that are included in a financial agreement.

7  Before section 86

Insert:

86A   Certain maintenance agreements ineffective

                   A maintenance agreement made after the commencement of this section that is not a financial agreement does not have any effect and is not enforceable in any way.

8  After subsection 86(1)

Insert:

          (1A)  A maintenance agreement made after the commencement of this subsection cannot be registered.

9  After subsection 87(1)

Insert:

          (1A)  Subsection (1) does not apply to a maintenance agreement made after the commencement of this subsection.

10  After Part VIII

Insert:

Part VIIIA Financial agreements

   

90A   Definitions

                   In this Part:

dealt with includes the meaning given by subsection 90F(2).

marriage includes a void marriage.

90B   Financial agreements before marriage

             (1)  If:

                     (a)  people who are contemplating entering into a marriage with each other make a written agreement with respect to any of the matters mentioned in subsection (2); and

                    (aa)  at the time of the making of the agreement, no other agreement (whether made under this section or section 90C or 90D) is in force between the parties with respect to any of those matters; and

                     (b)  the agreement is expressed to be made under this section;

the agreement is a financial agreement .

             (2)  The matters referred to in paragraph (1)(a) are the following:

                     (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 dissolution of the marriage, is to be dealt with;

                     (b)  the maintenance of either of them:

                              (i)  during the marriage; or

                             (ii)  after the dissolution of the marriage; or

                            (iii)  both during, and after the dissolution of, the marriage.

             (3)  A financial agreement made as mentioned in subsection (1) may contain matters incidental or ancillary to those mentioned in subsection (2).

             (4)  A financial agreement made as mentioned in subsection (1) may terminate a previous financial agreement made as mentioned in that subsection between the same parties.

90C   Financial agreements during marriage

             (1)  If:

                     (a)  the parties to a marriage make a written agreement with respect to any of the matters mentioned in subsection (2); and

                    (aa)  at the time of the making of the agreement, no other agreement (whether made under this section or section 90B or 90D) is in force between the parties with respect to any of those matters; and

                     (b)  the agreement is expressed to be made under this section;

the agreement is a financial agreement .

             (2)  The matters referred to in paragraph (1)(a) are the following:

                     (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 during the marriage, is to be dealt with;

                     (b)  the maintenance of either of them:

                              (i)  during the marriage; or

                             (ii)  after the dissolution of the marriage; or

                            (iii)  both during, and after the dissolution of, the marriage.

             (3)  A financial agreement made as mentioned in subsection (1) may contain matters incidental or ancillary to those mentioned in subsection (2).

             (4)  A financial agreement made as mentioned in subsection (1) may terminate a previous financial agreement made as mentioned in that subsection, or a financial agreement made as mentioned in subsection 90B(1), between the same parties.

90D   Financial agreements after dissolution of marriage

             (1)  If:

                     (a)  after a decree nisi dissolving a marriage is made, the parties to the former marriage make a written agreement with respect to any of the matters mentioned in subsection (2); and

                    (aa)  at the time of the making of the agreement, no other agreement (whether made under this section or section 90B or 90C) is in force between the parties with respect to any of those matters; and

                     (b)  the agreement is expressed to be made under this section;

the agreement is a financial agreement .

             (2)  The matters referred to in paragraph (1)(a) are the following:

                     (a)  how all or any of the property or financial resources that either or both of them had or acquired during the former marriage is to be dealt with;

                     (b)  the maintenance of either of them.

             (3)  A financial agreement made as mentioned in subsection (1) may contain matters incidental or ancillary to those mentioned in subsection (2).

             (4)  A financial agreement made as mentioned in subsection (1) may terminate a previous financial agreement made as mentioned in that subsection, or a financial agreement made as mentioned in subsection 90B(1) or 90C(1), between the same parties.

90E   Requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or children

                   A provision of a financial agreement that relates to the maintenance of a party to the agreement or a child or children is void unless the provision specifies:

                     (a)  the party, or the child or children, for whose maintenance provision is made; and

                     (b)  the amount provided for, or the value of the portion of the relevant property attributable to, the maintenance of the party, or of the child or each child, as the case may be.

90F   Certain provisions in agreements

             (1)  No provision of a financial agreement (other than a financial agreement made under section 90B or a financial agreement made under section 90C in the event of the breakdown of a marriage) excludes or limits the power of a court having jurisdiction under this Act to make an order in relation to the maintenance of a party to a marriage if the court is satisfied that, when the agreement was made, the circumstances of the party were such that, taking into account the terms and effect of the agreement, the party would have been unable to support himself or herself without an income tested pension, allowance or benefit.

             (2)  To avoid doubt, a provision in an agreement made as mentioned in subsection 90C(1) or 90D(1) that provides for property or financial resources owned by a party to the agreement to continue in the ownership of that party is taken, for the purposes of that section, to be a provision with respect to how the property or financial resources are to be dealt with.

90G   When financial agreements are binding

             (1)  A financial agreement is binding on the parties to the agreement if, and only if:

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

                     (b)  the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:

                              (i)  the effect of the agreement on the rights of that party;

                             (ii)  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;

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

                            (iv)  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; and

                     (c)  the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and

                     (d)  the agreement has not been terminated and has not been set aside by a court; and

                     (e)  after the agreement is signed, the original agreement is given to one of the parties and a copy is given to the other.

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

             (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.

90H   Effect of death of party to financial agreement

                   A financial agreement that is binding on the parties to the agreement continues to operate despite the death of a party to the agreement and operates in favour of, and is binding on, the legal personal representative of that party.

90J   Termination of financial agreement

             (1)  The parties to a financial agreement may terminate the agreement only by:

                     (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 (a termination agreement ) to that effect.

             (2)  A termination agreement is binding on the parties if, and only if:

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

                     (b)  the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:

                              (i)  the effect of the agreement on the rights of that party;

                             (ii)  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;

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

                            (iv)  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; and

                     (c)  the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and

                     (d)  the agreement has not been set aside by a court; and

                     (e)  after the agreement is signed, the original agreement is given to one of the parties and a copy is given to the other.

             (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 .

90K   Circumstances in which court may set aside a financial agreement or termination agreement

             (1)  A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that:

                     (a)  the agreement was obtained by fraud (including non-disclosure of a material matter); or

                     (b)  the agreement is void, voidable or unenforceable; or

                     (c)  in the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out; or

                     (d)  since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside.

             (2)  For the purposes of paragraph (1)(d), a person has caring responsibility for a child if:

                     (a)  the person is a parent of the child with whom the child lives; or

                     (b)  the person has a residence order in relation to the child; or

                     (c)  the person has a specific issues order in relation to the child under which the person is responsible for the child’s long-term or day-to-day care, welfare and development.

90KA  Validity, enforceability and effect of financial agreements and termination agreements

                   The question whether a financial agreement or a termination agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings relating to such an agreement, the court:

                     (a)  subject to paragraph (b), has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction; and

                     (b)  has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable under the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the applicable Rules of Court.

90L   Financial and other agreements etc. not liable to duty

                   A financial agreement, a termination agreement, or a deed or other instrument executed by a person for the purposes of, or in accordance with, an order made under this Part, is not subject to any duty or charge under any law of a State or Territory or any law of the Commonwealth that applies only in relation to a Territory.