FAMILY LAW AMENDMENT (DE FACTO FINANCIAL MATTERS AND OTHER MEASURES) ACT 2008 (NO. 115, 2008) - SCHEDULE 3 Amendments relating to financial agreements about marriage
FAMILY LAW AMENDMENT (DE FACTO FINANCIAL MATTERS AND OTHER MEASURES) ACT 2008 (NO. 115, 2008) - SCHEDULE 3
Amendments relating to financial agreements about marriagePart 1 -- Clarifying that other persons can be parties
1 Subsection 4(1)
Insert:
"spouse party" , in relation to a financial agreement, means a party to the agreement who is a party to the contemplated marriage, marriage or former marriage to which the agreement relates.
2 Subsection 4(1)
Insert:
"third party" , in relation to a financial agreement, means a party to the agreement who is not a spouse party.
3 Paragraph 90B(1)(aa)
Repeal the paragraph, substitute:
(aa) at the time of the making of the agreement, the people are not the spouse parties to any other binding agreement (whether made under this section or section 90C or 90D) with respect to any of those matters; and
4 At the end of subsection 90B(1)
Add "The people may make the financial agreement with one or more other people.".
5 Subsection 90B(2)
Omit "them" (wherever occurring), substitute "the spouse parties".
6 Subsections 90B(3) and (4)
Repeal the subsections, substitute:
(3) A financial agreement made as mentioned in subsection (1) may also contain:
(a) matters incidental or ancillary to those mentioned in subsection (2); and
(b) other matters.
(4) A financial agreement (the new agreement ) made as mentioned in subsection (1) may terminate a previous financial agreement (however made) if all of the parties to the previous agreement are parties to the new agreement.
7 Paragraph 90C(1)(aa)
Repeal the paragraph, substitute:
(aa) at the time of the making of the agreement, the parties to the marriage are not the spouse parties to any other binding agreement (whether made under this section or section 90B or 90D) with respect to any of those matters; and
8 At the end of subsection 90C(1)
Add "The parties to the marriage may make the financial agreement with one or more other people.".
9 Subsection 90C(2)
Omit "them" (wherever occurring), substitute "the spouse parties".
10 Subsections 90C(3) and (4)
Repeal the subsections, substitute:
(3) A financial agreement made as mentioned in subsection (1) may also contain:
(a) matters incidental or ancillary to those mentioned in subsection (2); and
(b) other matters.
(4) A financial agreement (the new agreement ) made as mentioned in subsection (1) may terminate a previous financial agreement (however made) if all of the parties to the previous agreement are parties to the new agreement.
11 Paragraph 90D(1)(aa)
Repeal the paragraph, substitute:
(aa) at the time of the making of the agreement, the parties to the former marriage are not the spouse parties to any other binding agreement (whether made under this section or section 90B or 90C) with respect to any of those matters; and
12 At the end of subsection 90D(1)
Add "The parties to the former marriage may make the financial agreement with one or more other people.".
13 Subsection 90D(2)
Omit "them" (wherever occurring), substitute "the spouse parties".
14 Subsections 90D(3) and (4)
Repeal the subsections, substitute:
(3) A financial agreement made as mentioned in subsection (1) may also contain:
(a) matters incidental or ancillary to those mentioned in subsection (2); and
(b) other matters.
(4) A financial agreement (the new agreement ) made as mentioned in subsection (1) may terminate a previous financial agreement (however made) if all of the parties to the previous agreement are parties to the new agreement.
15 Subsections 90DA(3) and (4)
Omit "parties" (wherever occurring), substitute "spouse parties".
16 Subsection 90DA(5) (definition of declaration time )
Repeal the definition, substitute:
"declaration time" means the time when the declaration was signed by a spouse party to the financial agreement.
17 After section 90DA
Insert:
90DB Whether or when certain other provisions of financial agreements take effect
(1) A financial agreement that is binding on the parties to the agreement, to the extent to which it provides for a third party to contribute to the maintenance of a spouse party during the marriage, is of no force or effect.
(2) A financial agreement that is binding on the parties to the agreement, to the extent to which it provides for matters covered by paragraph 90B(3)(b) or 90C(3)(b), is of no force or effect unless and until the marriage breaks down.
18 Section 90E
Omit "party" (first occurring), substitute "spouse party".
19 Subsection 90F(2)
Omit "party" (first occurring), substitute "spouse party".
20 Paragraph 90G(1)(a)
Omit "both", substitute "all".
21 Paragraph 90G(1)(b)
Omit "party" (first occurring), substitute "spouse party".
22 Paragraph 90G(1)(e)
Omit "parties and a copy is given to the other", substitute "spouse parties and a copy is given to each of the other parties".
23 Paragraph 90J(2)(a)
Omit "both", substitute "all".
24 Paragraph 90J(2)(b)
Omit "party" (first occurring), substitute "spouse party".
25 Paragraph 90J(2)(e)
Omit "parties and a copy is given to the other", substitute "spouse parties and a copy is given to each of the other parties".
26 Paragraph 90K(1)(aa)
Omit "either", substitute "a".
27 Subsection 90MH(1)
Omit "parties", substitute "spouse parties".
28 Subsection 90MH(4)
Omit "parties", substitute "spouse parties".
29 Subsection 90MH(5)
Omit "party" (first occurring), substitute "spouse party".
Part 2 -- Separation declarations
30 Subsection 90DA(1)
Repeal the subsection, substitute:
(1) A financial agreement that is binding on the parties to the agreement, to the extent to which it deals with how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of the spouse parties:
(a) at the time when the agreement is made; or
(b) at a later time and before the termination of the marriage by divorce;
are to be dealt with, is of no force or effect until a separation declaration is made.
Note: Before the separation declaration is made, the financial agreement will be of force and effect in relation to the other matters it deals with (except for any matters covered by section 90DB).
(1A) Subsection (1) ceases to apply if:
(a) the spouse parties divorce; or
(b) either or both of them die.
Note: This means the financial agreement will be of force and effect in relation to the matters mentioned in subsection (1) from the time of the divorce or death(s).
31 Subsection 90DA(2)
After "(4)", insert ", and may be included in the financial agreement to which it relates".
32 Section 90MD (at the end of the definition of declaration time )
Add:
Note: If a spouse has died, the spouse's legal personal representative may sign a declaration (see subsection 90MP(2)).
33 Section 90MI
Before "The", insert "(1)".
34 Paragraph 90MI(a)
Repeal the paragraph, substitute:
(a) if the parties are divorced--a copy of the divorce order that has terminated the marriage; and
(aa) if, in the case of a payment split under a superannuation agreement:
(i) the parties are not divorced; and
(ii) a separation declaration is not part of the superannuation agreement;
a separation declaration; and
35 At the end of section 90MI
Add:
(2) For the purposes of subsection (1), the separation declaration must have a declaration time that is not more than 28 days before the service on the trustee.
36 After paragraph 90MJ(1)(d)
Insert:
(da) if the agreement relates to a marriage--the marriage is broken down at the operative time; and
37 Subsection 90MP(1)
After "section", insert ", and may be included in the superannuation agreement to which it relates".
38 At the end of subsection 90MP(2)
Add "For this purpose, if a spouse has died the spouse's legal personal representative may sign the declaration.".
39 After subsection 90MP(4)
Insert:
(4A) If either or both of the spouses have died, then the declaration must state:
(a) if section 90MQ applies to the declaration--that at the most recent time when both spouses were alive:
(i) the spouses were married; but
(ii) the spouses were separated and had lived separately and apart for a continuous period of at least 12 months immediately before that time; or
(b) if section 90MQ does not apply to the declaration--that the spouses were married, but separated, at the most recent time when both spouses were alive.
Subsections (3) and (4) have effect subject to this subsection.
40 Subsection 90MQ(1)
Repeal the subsection, substitute:
(1) This section applies to a declaration if:
(a) if both spouses are alive at the declaration time--at the declaration time; or
(b) otherwise--at the most recent time when both spouses were alive;
the total withdrawal value for all the superannuation interests of the member spouse is more than the member spouse's low rate cap amount for the income year in which that time occurs.
41 At the end of section 90MZG
Add:
(4) Subsection (1) does not apply in relation to a declaration if a spouse to which the declaration relates died before the declaration was made.
42 Subsection 4(1) (paragraph (eaa) of the definition of matrimonial cause )
Omit all the words after "paragraphs,", substitute:
proceedings with respect to a financial agreement that are between any combination of:
(i) the parties to that agreement; and
(ii) the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives); or
43 Paragraphs 4A(1)(a) and (b)
Repeal the paragraphs, substitute:
(a) any combination of:
(i) the parties to a financial agreement; and
(ii) the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives); and
(b) any of the following:
(i) a creditor;
(ii) if a creditor is an individual who has died--the legal personal representative of the creditor;
(iii) a government body acting in the interests of a creditor;
44 Subsection 4A(2) (definition of creditor )
Omit "either of the parties" (wherever occurring), substitute "a party".
45 Subsection 90F(2)
Omit "subsection 90C(1)", substitute "subsection 90B(1), 90C(1)".
46 Paragraph 90MU(1)(b)
Omit "court", substitute "member spouse and the non‑member spouse".
47 Subsection 90MZB(8) (after paragraph (a) of the definition of eligible person )
Insert:
(aa) if the member has died--the legal personal representative of the member; or
48 Subsection 90MZB(8) (after paragraph (b) of the definition of eligible person )
Insert:
(ba) if a spouse of the member has died--the legal personal representative of the spouse; or