Commonwealth Numbered Acts

Family Law Amendment Act 1983 No. 72 of 1983 - SECT 44

44. (1) Section 87 of the Principal Act is repealed and the following section
is substituted: Operation of maintenance agreements entered into in
substitution for rights under Act

''87. (1) Subject to this section, a maintenance agreement may make provision
to the effect that the agreement shall operate, in relation to the financial
matters dealt within the agreement, in substitution for any rights of the
parties to the agreement under this Part.

''(2) Where a maintenance agreement makes provision as mentioned in
sub-section (1), the maintenance agreement has no effect, and is not
enforceable in any way, unless it has been approved by the court.

''(3) In proceedings for the approval of a maintenance agreement, if the court
is satisfied that the provisions of the agreement with respect to financial
matters are proper, the court shall, by order, approve the agreement, but if
the court is not so satisfied, it shall, by order, refuse to approve the
agreement.

''(4) Where a maintenance agreement that makes provision as mentioned in
sub-section (1) is approved by the court-

   (a)  any order having effect under this Part or any order made under Part
        VIII of the repealed Act and continued in effect by virtue of
        paragraph 3 (2) (c) ceases to have effect in so far as it relates to
        the financial matters dealt with in the agreement and, whether or not
        the approval of the agreement is revoked, has no further effect; and

   (b)  subject to sub-sections (13) and (14), no court having jurisdiction
        under this Act may make an order (other than an order under this
        section or an order in connection with the enforcement of the
        agreement) with respect to those financial matters unless the approval
        of the agreement is revoked.

''(5) Notwithstanding any rule of law or equity, an approved maintenance
agreement shall not be taken to be void, voidable or unenforceable by reason
that it makes provision as mentioned in sub-section (1).

''(6) Where a court has approved a maintenance agreement, the agreement shall
be deemed to be registered in that court.

''(7) An agreement that is by virtue of sub-section (6) deemed to be
registered in a court may be registered, as prescribed, in another court
having jurisdiction under this Act.

''(8) A court may, by order, revoke the approval of a maintenance agreement
under this section if, and only if, the agreement is registered or deemed to
be registered in that court and the court is satisfied that-

   (a)  the approval was obtained by fraud;

   (b)  the parties to the agreement desire the revocation of the approval;

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

   (d)  in the circumstances that have arisen since the agreement was approved
        it is impracticable for the agreement to be carried out or
        impracticable for a part of the agreement to be carried out.

''(9) Where the approval of a maintenance agreement under this section is
revoked by a court-

   (a)  the agreement ceases, for all purposes, to be in force; and

   (b)  the court may, in proceedings for the revocation of the approval or on
        application by a party to the agreement 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
        preserving or adjusting the rights of the parties to the agreement and
        any other interested persons,
and, in exercising its powers under paragraph (b), the court shall have regard
to the ground on which it revoked the approval of the agreement.

''(10) Where a maintenance agreement has been approved by a court as provided
by this section, then-

   (a)  unless the agreement otherwise provides, the agreement (other than a
        provision in the agreement providing for the payment by way of
        maintenance of a periodic sum) continues to operate notwithstanding
        the death of a party to the agreement and operates in favour of, and
        is binding on, the legal personal representative of that party; and

   (b)  if the agreement so provides, a provision in the agreement providing
        for the payment to a person by way of maintenance of a periodic sum
        continues to operate notwithstanding the death of any part to the
        agreement who is liable to make payments pursuant to that provision
        and is binding on the legal personal representative of that party but,
        notwithstanding any provision in the agreement, does not continue to
        operate after the death of the person who is entitled to receive those
        payments.

''(11) Apart from the provision made by sub-sections (2), (5), (9) and (10),
the validity, enforceability and effect of an approved maintenance agreement
shall 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 of the kind referred to
in sub-paragraph (ea) (iii) of the definition of 'matrimonial cause' in
sub-section 4 (1), being proceedings instituted in a court in which the
approved maintenance agreement is registered or deemed to be registered, the
court-

   (a)  subject to paragraph (b), has the same powers, may grant the same
        remedies and shall 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;

   (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 pursuant to the agreement, from the time when the amount
        became or becomes due and payable, at a rate not exceeding the rate
        prescribed by the regulations; and

   (c)  in addition to, or instead of, making an order or orders pursuant to
        paragraph (a) or (b), may order that the agreement, or a specified
        part of the agreement, be enforced as if it were an order of the
        court.

''(12) Where the approval of a maintenance agreement under this section has
been revoked, a court shall, in considering whether, and if so, how, to
exercise any powers under this Part, have regard to-

   (a)  anything done or omitted to be done by a party to the agreement
        pursuant to the agreement;

   (b)  any change in the circumstances of a party to the agreement arising
        out of the doing of any act by a person, or the failure of a person to
        do an act, pursuant to the agreement;

   (c)  any order made by that court or another court exercising jurisdiction
        under this Act in connection with the agreement while the agreement
        was in force; and

   (d)  any order made under paragraph (9) (b) in connection with the
        revocation of the approval of the agreement.

''(13) Where the court is satisfied that the arrangements relating to a child
of the marriage who has not attained the age of 18 years made in an approved
maintenance agreement are no longer proper, it may make an order under this
Part.

''(14) Where the court is satisfied-

   (a)  that the provision of maintenance for a child of a marriage who has
        attained the age of 18 years is necessary-

        (i)    to enable the child to complete his education (including
               vocational training or apprenticeship); or

        (ii)   because the child is mentally or physically handicapped; and

   (b)  that the arrangements relating to the child made in an approved
        maintenance agreement are not proper, or are no longer proper, having
        regard to the matters referred to in paragraph (a), the court may make
        an order under this Part.

''(15) In this section, 'approved maintenance agreement' means a maintenance
agreement that has been approved under this section and the approval of which
has not been revoked.

''(16) Nothing in this Act affects the operation of an agreement sanctioned
under paragraph 87 (1) (k) of the repealed Act or the rights and obligations
of a person under such an agreement.

''(17) Subject to section 89, this section does not apply to overseas
maintenance agreements.''.

(2) Where-

   (a)  a maintenance agreement had, before the commencement of this section,
        been approved under section 87 of the Family Law Act 1975 as in force,
        or as amended and in force, at any time before that commencement; and

   (b)  the approval of the maintenance agreement had not been revoked before
        that commencement,
section 87 of the Family Law Act 1975 as amended and in force after that
commencement applies to and in relation to that maintenance agreement as if it
had been approved under that section as so in force.

(3) Where-

   (a)  a maintenance agreement had, before the commencement of this section,
        been approved under section 87 of the Family Law Act 1975 as in force,
        or as amended and in force, at any time before that commencement; and

   (b)  the approval of the maintenance agreement had been revoked before that
        commencement,
section 87 of the Principal Act continues to apply to and in relation to that
maintenance agreement as if sub-section (1) of this section had not been
enacted.