Commonwealth Numbered Acts Commonwealth Numbered ActsPart 1 -- Financial agreements
1 Subsection 4(1) (after paragraph (a) of the definition of spouse party )
Insert:
(aa) in relation to a termination agreement referred to in paragraph 90J(1)(b)--a party covered by paragraph (a) of this definition in relation to the financial agreement concerned; or
1A Subsection 90G(1)
Omit "A", substitute "Subject to subsection (1A), a".
2 Paragraphs 90G(1)(b) and (c)
Repeal the paragraphs, substitute:
(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and
(c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
3 Paragraph 90G(1)(d)
Omit "court; and", substitute "court.".
4 Paragraph 90G(1)(e)
Repeal the paragraph.
4A After subsection 90G(1)
Insert:
(1A) A financial agreement is binding on the parties to the agreement if:
(a) the agreement is signed by all parties; and
(b) one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and
(c) a court 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); and
(d) the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and
(e) the agreement has not been terminated and has not been set aside by a court.
(1B) For the purposes of paragraph (1A)(d), a court may make an order declaring that a financial agreement is binding on the parties to the agreement, upon application (the enforcement application ) by a spouse party seeking to enforce the agreement.
(1C) To avoid doubt, section 90KA applies in relation to the enforcement application.
4B Subsection 90J(2)
Omit "A", substitute "Subject to subsection (2A), a".
5 Paragraphs 90J(2)(b) and (c)
Repeal the paragraphs, substitute:
(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and
(c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
6 Paragraph 90J(2)(d)
Omit "court; and", substitute "court.".
7 Paragraph 90J(2)(e)
Repeal the paragraph.
7A After subsection 90J(2)
Insert:
(2A) A termination agreement is binding on the parties if:
(a) the agreement is signed by all parties to the agreement; and
(b) one or more of paragraphs (2)(b), (c) and (ca) are not satisfied in relation to the agreement; and
(c) a court 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); and
(d) the court makes an order under subsection (2B) declaring that the agreement is binding on the parties to the agreement; and
(e) the agreement has not been set aside by a court.
(2B) For the purposes of paragraph (2A)(d), a court may make an order declaring that a termination agreement is binding on the parties to the agreement, upon application (the enforcement application ) by a spouse party seeking to enforce the agreement.
(2C) To avoid doubt, section 90KA applies in relation to the enforcement application.
8 Application
(1) The amendments made by items 1A to 7A apply in relation to financial agreements, and termination agreements, made on or after 27 December 2000.
(2) However, those amendments do not apply in relation to an agreement if, before the commencement of this item, a court has made an order setting aside the agreement.
(3) If, before the commencement of this item, a court has made an order under section 79 or 83 of the Family Law Act 1975 on the basis that an agreement did not bind the spouses , then, after the commencement of this item, the agreement is taken not to bind them.
(4) For a financial agreement made before 14 January 2004, paragraph 90G(1)(b) of the Family Law Act 1975 , as inserted by item 2 of this Schedule, does not apply and the following paragraph 90G(1)(b) of that Act is taken to have been inserted by that item and to apply instead:
(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about:
(i) the effect of the agreement on the rights of that party; and
(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; and
(iii) whether or not, at that time, it was prudent for that party to make the agreement; and
(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
(5) For a termination agreement made before 14 January 2004, paragraph 90J(2)(b) of the Family Law Act 1975 , as inserted by item 5 of this Schedule, does not apply and the following paragraph 90J(2)(b) of that Act is taken to have been inserted by that item and to apply instead:
(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about:
(i) the effect of the agreement on the rights of that party; and
(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; and
(iii) whether or not, at that time, it was prudent for that party to make the agreement; and
(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
(6) For a financial agreement made before the commencement of this item, paragraphs 90G(1)(c) and (ca) of the Family Law Act 1975 , as inserted by item 2 of this Schedule, do not apply.
(7) For a financial agreement made before the commencement of this item, paragraph 90G(1A)(b) of the Family Law Act 1975 , as inserted by item 4A of this Schedule, does not apply and the following paragraph 90G(1A)(b) of that Act is taken to have been inserted by that item and to apply instead:
(b) paragraph (1)(b) is not satisfied in relation to the agreement; and
(8) For a termination agreement made before the commencement of this item, paragraphs 90J(2)(c) and (ca) of the Family Law Act 1975 , as inserted by item 5 of this Schedule, do not apply.
(9) For a termination agreement made before the commencement of this item, paragraph 90J(2A)(b) of the Family Law Act 1975 , as inserted by item 7A of this Schedule, does not apply and the following paragraph 90J(2A)(b) of that Act is taken to have been inserted by that item and to apply instead:
(b) paragraph (2)(b) is not satisfied in relation to the agreement; and
8A Transitional--agreements made on or after 14 January 2004 and before commencement
(1) Subitems (2) and (3) apply in relation to a financial agreement made on or after 14 January 2004 and before the commencement of this item.
(2) Paragraph 90G(1)(b) of the Family Law Act 1975 , as in force during that period, is also taken to be satisfied in relation to a spouse in relation to the agreement if, before signing the agreement, the spouse party was provided with independent legal advice from a legal practitioner about:
(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.
(3) Paragraph 90G(1)(c) of the Family Law Act 1975 , as inserted by this Act, applies in relation to the agreement as if the reference in that paragraph to the advice referred to in paragraph (b) included a reference to the advice referred to in subitem (2) of this item.
(4) Subitems (5) and (6) apply in relation to a termination agreement made on or after 14 January 2004 and before the commencement of this item.
(5) Paragraph 90J(2)(b) of the Family Law Act 1975 , as in force during that period, is also taken to be satisfied in relation to a spouse in relation to the agreement if, before signing the agreement, the spouse party was provided with independent legal advice from a legal practitioner about:
(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.
(6) Paragraph 90J(2)(c) of the Family Law Act 1975 , as inserted by this Act, applies in relation to the agreement as if the reference in that paragraph to the advice referred to in paragraph (b) included a reference to the advice referred to in subitem (5) of this item.
(7) This item does not apply in relation to an agreement if, before the commencement of this item, a court has made an order setting aside the agreement.
Part 2 -- Financial matters relating to de facto relationships
9 Subsection 4(1) (at the end of the definition of spouse party )
Add:
; or (c) in relation to a Part VIIIAB termination agreement--a party covered by paragraph (b) of this definition in relation to the Part VIIIAB financial agreement concerned.
9A Subsection 90UJ(1)
Omit "A", substitute "Subject to subsection (1A), a".
10 Paragraphs 90UJ(1)(b) and (c)
Repeal the paragraphs, substitute:
(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and
(c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
11 Paragraph 90UJ(1)(d)
Omit "court; and", substitute "court.".
12 Paragraph 90UJ(1)(e)
Repeal the paragraph.
12A After subsection 90UJ(1)
Insert:
(1A) A Part VIIIAB financial agreement (other than an agreement covered by section 90UE) is binding on the parties to the agreement if:
(a) the agreement is signed by all parties; and
(b) one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and
(c) a court 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); and
(d) the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and
(e) the agreement has not been terminated and has not been set aside by a court.
(1B) For the purposes of paragraph (1A)(d), a court may make an order declaring that a Part VIIIAB financial agreement is binding on the parties to the agreement, upon application (the enforcement application ) by a spouse party seeking to enforce the agreement.
(1C) To avoid doubt, section 90UN applies in relation to the enforcement application.
12B Subsection 90UL(2)
Omit "A", substitute "Subject to subsection (2A), a".
13 Paragraphs 90UL(2)(b) and (c)
Repeal the paragraphs, substitute:
(b) before signing the termination agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the termination agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the termination agreement; and
(c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the termination agreement); and
(ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
14 Paragraph 90UL(2)(d)
Omit "court; and", substitute "court.".
15 Paragraph 90UL(2)(e)
Repeal the paragraph.
15A After subsection 90UL(2)
Insert:
(2A) A Part VIIIAB termination agreement is binding on the parties if:
(a) the termination agreement is signed by all parties to the Part VIIIAB financial agreement; and
(b) one or more of paragraphs (2)(b), (c) and (ca) are not satisfied in relation to the termination agreement; and
(c) a court is satisfied that it would be unjust and inequitable if the termination agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and
(d) the court makes an order under subsection (2B) declaring that the termination agreement is binding on the parties to the agreement; and
(e) the termination agreement has not been set aside by a court.
(2B) For the purposes of paragraph (2A)(d), a court may make an order declaring that a Part VIIIAB termination agreement is binding on the parties to the agreement, upon application (the enforcement application ) by a spouse party seeking to enforce the agreement.
(2C) To avoid doubt, section 90UN applies in relation to the enforcement application.
16 Subsection 90UM(5)
Repeal the subsection, substitute:
(5) This subsection applies if:
(a) at least one of the spouse parties to the agreement was not provided, before signing the agreement, with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages to that party of making the agreement; or
(b) if this advice was provided to at least one of the spouse parties to the agreement--that party was not provided with a signed statement by the legal practitioner stating that this advice was given to that party;
and it would be unjust and inequitable, having regard to the eligible agreed matters (within the meaning of section 90UE) for the agreement, if the court does not set the agreement aside.
17 Application
(1) The amendments made by items 9A to 15A apply in relation to agreements made under section 90UB, 90UC or 90UD of the Family Law Act 1975 , and Part VIIIAB termination agreements, made on or after the day on which item 1 of Schedule 1 to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 commences.
(2) However, those amendments do not apply in relation to an agreement if, before the commencement of this item, a court has made an order setting aside the agreement.
(3) If, before the commencement of this item, a court has made an order under section 90SI or 90SM of the Family Law Act 1975 on the basis that an agreement did not bind the spouse parties , then, after the commencement of this item, the agreement is taken not to bind them.
(4) For an agreement made under section 90UB, 90UC or 90UD of the Family Law Act 1975 before the commencement of this item, paragraphs 90UJ(1)(c) and (ca) of the Family Law Act 1975 , as inserted by item 10 of this Schedule, do not apply.
(5) For an agreement made under section 90UB, 90UC or 90UD of the Family Law Act 1975 before the commencement of this item, paragraph 90UJ(1A)(b) of the Family Law Act 1975 , as inserted by item 12A of this Schedule, does not apply and the following paragraph 90UJ(1A)(b) of that Act is taken to have been inserted by that item and to apply instead:
(b) paragraph (1)(b) is not satisfied in relation to the agreement; and
(6) For a Part VIIIAB termination agreement made before the commencement of this item, paragraphs 90UL(2)(c) and (ca) of the Family Law Act 1975 , as inserted by item 13 of this Schedule, do not apply.
(7) For a Part VIIIAB termination agreement made before the commencement of this item, paragraph 90UL(2A)(b) of the Family Law Act 1975 , as inserted by item 15A of this Schedule, does not apply and the following paragraph 90UL(2A)(b) of that Act is taken to have been inserted by that item and to apply instead:
(b) paragraph (2)(b) is not satisfied in relation to the agreement; and
[ Minister's second reading speech made in--
House of Representatives on 3 December 2008
Senate on 5 February 2009 ]
|
(244/08) |