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FAMILY LAW AMENDMENT ACT 2003 NO. 138, 2003 - SCHEDULE 4A

- Setting aside financial agreements Part 1—Amendments

Family Law Act 1975

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

Insert:

(eab) third party proceedings (as defined in section 4A) to set aside a financial agreement; or

2 After section 4

Insert:

4A Third party proceedings to set aside financial agreement
(1)
For the purposes of paragraph (eab) of the definition of "matrimonial cause" in subsection 4(1), third party proceedings means proceedings between:

(a) either or both of the parties to a financial agreement; and
(b) a creditor or a government body acting in the interests of a creditor;

being proceedings for the setting aside of the financial agreement on the ground specified in paragraph 90K(1)(aa).

(2)
In this section:

"creditor" means:

(a) a creditor of either of the parties to the financial agreement; or
(b) a person who, at the commencement of the proceedings, could reasonably have been foreseen by the court as being reasonably likely to become a creditor of either of the parties to the financial agreement.

"government body" means:

(a) the Commonwealth, a State or a Territory; or
(b) an official or authority of the Commonwealth, a State or a Territory.

3 After paragraph 90K(1)(a)

Insert:

(aa) either party to the agreement entered into the agreement:
(i) for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or
(ii) with reckless disregard of the interests of a creditor or creditors of the party; or

4 After subsection 90K(1)

Insert:

(1A)
For the purposes of paragraph (1)(aa), creditor , in relation to a party to the agreement, includes a person who could reasonably have been foreseen by the party as being reasonably likely to become a creditor of the party.

5 At the end of section 90K

Add:

(3)
A court may, on an application by a person who was a party to the financial agreement that has been set aside, 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.

(4)
An order under subsection (1) or (3) may, after the death of a party to the proceedings in which the order was made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

(5)
If a party to proceedings under this section dies before the proceedings are completed:

(a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings; and
(b) if the court is of the opinion:
(i) that it would have exercised its powers under this section if the deceased party had not died; and
(ii) that it is still appropriate to exercise those powers;
the court may make any order that it could have made under subsection (1) or (3); and
(c) an order under paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

(6)
The court must not make an order under this section if the order would:

(a) result in the acquisition of property from a person otherwise than on just terms; and
(b) be invalid because of paragraph 51(xxxi) of the Constitution.

For this purpose, acquisition of property and just terms have the same meanings as in paragraph 51(xxxi) of the Constitution.

Part 2—Application of amendments 6 Application of amendments

The amendments made by this Schedule apply to financial agreements made at any time, whether before or after the commencement of this Schedule. However, the amendments do not apply to proceedings that were instituted before the commencement of this Schedule.


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