PROPERTY LAW AMENDMENT BILL 1999

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This is a Bill, not an Act. For current law, see the Acts databases.

PROPERTY LAW AMENDMENT BILL 1999

Queensland PROPERTY LAW AMENDMENT BILL 1999

Queensland PROPERTY LAW AMENDMENT BILL 1999 TABLE OF PROVISIONS Section Page PART 1--PRELIMINARY 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 PART 2--AMENDMENT OF PROPERTY LAW ACT 1974 2 Act amended in pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3 Amendment of title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4 Amendment and relocation of s 3 (Definitions) . . . . . . . . . . . . . . . . . . . . . . 8 5 Insertion of new s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 3 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 6 Renumbering of pt 19 (Miscellaneous) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 7 Insertion of new pt 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 PART 19--PROPERTY (DE FACTO RELATIONSHIPS) Division 1--Preliminary 255 Main purposes of pt 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 256 How main purposes are to be achieved . . . . . . . . . . . . . . . . . . . . . . . 11 257 Application of pt 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 258 Other rights not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Division 2--Interpretation Subdivision 1--General 259 Definitions for pt 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Subdivision 2--De facto spouse and relationship concepts 260 Meaning of "de facto spouse" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 261 Meaning of "de facto relationship" . . . . . . . . . . . . . . . . . . . . . . . . . . 14

2 Property Law Amendment Subdivision 3--Financial matters and financial resources concepts 262 Meaning of "financial matters" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 263 Meaning of "financial resources" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Subdivision 4--Cohabitation, separation and recognised agreement concepts 264 Meaning of "cohabitation agreement" . . . . . . . . . . . . . . . . . . . . . . . . 14 265 Meaning of "separation agreement" . . . . . . . . . . . . . . . . . . . . . . . . . 15 266 Meaning of "recognised agreement" . . . . . . . . . . . . . . . . . . . . . . . . . 15 Subdivision 5--Publication and account of a de facto proceeding concepts 267 Meaning of "publish" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 268 Meaning of "account of a de facto proceeding" . . . . . . . . . . . . . . . . 16 Division 3--Resolution of financial matters by de facto spouses Subdivision 1--Purpose of division and use of agreements 269 Purpose of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 270 Cohabitation and separation agreements are valid . . . . . . . . . . . . . . 17 271 Court's jurisdiction may not be excluded . . . . . . . . . . . . . . . . . . . . . 17 272 Law of contract applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 273 Effect of de facto spouse's death . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Subdivision 2--Relationship between recognised agreements and proceedings 274 No property adjustment order inconsistent with recognised agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 275 Court to ignore revoked provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 276 Court may vary recognised agreement if serious injustice or impracticable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Subdivision 3--Relationship between agreements other than recognised agreements and proceedings 277 Other cohabitation or separation agreements may be considered . . 19 278 Court to ignore revoked provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Division 4--Resolution of financial matters by court Subdivision 1--Declaration of property interests 279 Purpose of sdiv 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 280 Court may declare property interests . . . . . . . . . . . . . . . . . . . . . . . . . 20

3 Property Law Amendment 281 Court may give effect to declaration . . . . . . . . . . . . . . . . . . . . . . . . . 20 Subdivision 2--Adjustment of property interests Subsubdivision 1--General 282 Purpose of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 283 De facto spouse may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 284 De facto spouses or child may benefit from adjustment . . . . . . . . . . 21 285 Not affected by other rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 286 Court may make property adjustment order . . . . . . . . . . . . . . . . . . . . 21 Subsubdivision 2--Requirements for property adjustment proceedings 287 Type of de facto relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 288 Time limit for making application . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 289 Disclosure of financial circumstances . . . . . . . . . . . . . . . . . . . . . . . . 23 290 Disclosure of child support and relevant orders . . . . . . . . . . . . . . . . . 23 Subsubdivision 3--Matters for consideration in deciding what is just and equitable 291 Contributions to property or financial resources . . . . . . . . . . . . . . . . 23 292 Contributions to family welfare . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 293 Effect on future earning capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 294 Child support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 295 Other orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 296 Other matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Subsubdivision 4--Additional matters for consideration to the relevant extent in deciding what is just and equitable 297 Age and health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 298 Resources and employment capacity . . . . . . . . . . . . . . . . . . . . . . . . . 26 299 Caring for children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 300 Necessary commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 301 Responsibility to support others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 302 Government assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 303 Appropriate standard of living . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 304 Contributions to income and earning capacity . . . . . . . . . . . . . . . . . 27 305 Length of relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 306 Effect of relationship on earning capacity . . . . . . . . . . . . . . . . . . . . . 27

4 Property Law Amendment 307 Financial circumstances of cohabitation . . . . . . . . . . . . . . . . . . . . . . 28 308 Child maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 309 Other facts and circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Subsubdivision 5--Adjournment because of likely change in financial circumstances 310 Likelihood of significant change in financial circumstances . . . . . . 28 311 Matters for consideration by court . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 312 Orders may be made before adjournment . . . . . . . . . . . . . . . . . . . . . 29 313 Adjournments on other grounds not affected . . . . . . . . . . . . . . . . . . . 29 Subsubdivision 6--Change in circumstances 314 Delayed operation of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 315 Effect on proceeding of death of party . . . . . . . . . . . . . . . . . . . . . . . . 29 Division 5--Existence of a de facto relationship Subdivision 1--Declaration about existence of relationship 316 Purpose of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 317 Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 318 Court may adjourn hearing if other affected person . . . . . . . . . . . . . 31 319 Court may make declaration about existence of relationship . . . . . 31 320 Court may make declaration about non-existence of relationship . . 31 321 Declaration to include date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 322 Death of de facto spouses irrelevant . . . . . . . . . . . . . . . . . . . . . . . . . 32 323 Effect of declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Subdivision 2--Revocation of declaration 324 Party or affected person may apply . . . . . . . . . . . . . . . . . . . . . . . . . . 32 325 Court may adjourn hearing if other affected person . . . . . . . . . . . . . 32 326 Court may revoke declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 327 Court may make ancillary orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 328 Effect of revocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Division 6--Courts Subdivision 1--Jurisdiction 329 Courts having jurisdiction under pt 19 . . . . . . . . . . . . . . . . . . . . . . . . 34 330 Stay or dismissal of proceeding in relation to same person . . . . . . . 34 331 Transfer of proceeding to more appropriate court . . . . . . . . . . . . . . . 35

5 Property Law Amendment Subdivision 2--Powers 332 Purpose of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 333 Court's powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 334 Variation and setting aside of orders . . . . . . . . . . . . . . . . . . . . . . . . . 37 335 Transactions to defeat claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 336 Interests of other parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 337 Duty of court to end financial relationship . . . . . . . . . . . . . . . . . . . . 39 Subdivision 3--Miscellaneous matters concerning proceedings Subsubdivision 1--Intervention 338 Application for leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 339 Leave to intervene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 340 Intervener's rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Subsubdivision 2--Costs 341 Party bears own costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Subsubdivision 3--Publication of proceedings 342 Specifically authorised publication . . . . . . . . . . . . . . . . . . . . . . . . . . 41 343 No identification in general publication . . . . . . . . . . . . . . . . . . . . . . 42 344 Offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 PART 3--CONSEQUENTIAL AMENDMENTS 8 Acts amended in schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . 44 ACTS AMENDED MAGISTRATES COURTS ACT 1921 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 STAMP ACT 1894 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

1999 A BILL FOR An Act to amend the Property Law Act 1974 to facilitate the resolution of financial matters at the end of a de facto relationship, and for other purposes

s1 8 s4 Property Law Amendment The Parliament of Queensland enacts-- 1 ART 1--PRELIMINARY 2 P title 3 Short Clause 1. This Act may be cited as the Property Law Amendment Act 1999. 4 PART 2--AMENDMENT OF PROPERTY LAW ACT 5 1974 6 amended in pt 2 7 Act Clause 2. This part amends the Property Law Act 1974. 8 of title 9 Amendment Clause 3.(1) Title, `contract, and'-- 10 omit, insert-- 11 `contract,'. 12 (2) Title, after `statutes'-- 13 insert-- 14 `, to facilitate the resolution of financial matters at the end of a 15 de facto relationship, and for other purposes'. 16 and relocation of s 3 (Definitions) 17 Amendment Clause 4.(1) Section 3, heading to `In this Act--'-- 18 omit, insert-- 19

s4 9 s4 Property Law Amendment `SCHEDULE 6 1 `DICTIONARY 2 section 3'. 3 (2) Section 3, definition "court"-- 4 omit. 5 (3) Section 3-- 6 insert-- 7 ` "account of a de facto proceeding", for part 19, see section 268. 8 "child" of de facto spouses, for part 19, see section 259. 9 "cohabitation agreement", for part 19, see section 264. 10 "court" means-- 11 (a) for part 191--a court having jurisdiction under the part;2 and 12 (b) otherwise--the Supreme Court. 13 "court document", of a proceeding, for part 19, see section 259. 14 "de facto relationship", for part 19, see section 261. 15 "de facto spouse", for part 19, see section 260. 16 "financial matters", for part 19, see section 262. 17 "financial resources", for part 19, see section 263. 18 "monetary limit", for part 19, see section 259. 19 "property adjustment order", for part 19, means an order under 20 section 286. 21 "publish", for part 19, see section 267. 22 "recognised agreement", for part 19, see section 266. 23 1 Part 19 (Property (De Facto Relationships)) 2 See section 329 (Courts having jurisdiction under pt 19)

s7 10 s7 Property Law Amendment "separation agreement", for part 19, see section 265.'. 1 (4) Section 3-- 2 relocate to after schedule 5. 3 of new s 3 4 Insertion Clause 5. After section 2-- 5 insert-- 6 7 `Dictionary `3. The dictionary in schedule 6 defines particular words used in this 8 Act.'. 9 of pt 19 (Miscellaneous) 10 Renumbering Clause 6.(1) Part 19-- 11 renumber as part 20. 12 (2) Sections 255 to 261-- 13 renumber as sections 345 to 351. 14 of new pt 19 15 Insertion Clause 7. After part 18-- 16 insert-- 17 ART 19--PROPERTY (DE FACTO 18 `P RELATIONSHIPS) 19 `Division 1--Preliminary 20 purposes of pt 19 21 `Main `255. This part has the following main purposes-- 22 (a) to facilitate the resolution of financial matters at the end of a 23 de facto relationship; 24

s7 11 s7 Property Law Amendment (b) to recognise de facto spouses should be allowed to plan their 1 financial future, and resolve financial matters at the end of their 2 relationship, by a cohabitation or separation agreement; 3 (c) to facilitate a just and equitable property distribution at the end of a 4 de facto relationship in relation to the de facto spouses and, in 5 particular cases, any child of the de facto spouses; 6 (d) to provide for declaratory relief to help persons ascertain their 7 existing interests in property of de facto spouses; 8 (e) to provide for injunctive relief to help persons protect their 9 existing and adjusted interests in property of de facto spouses; 10 (f) to provide for declaratory relief about the existence or 11 non-existence of a de facto relationship and to avoid the 12 duplication of proceedings if the existence or non-existence of a 13 de facto relationship is relevant in 2 or more proceedings; 14 (g) to facilitate the resolution of matters concerning a de facto 15 relationship by the Supreme Court, the District Court or a 16 Magistrates Court. 17 main purposes are to be achieved 18 `How `256. The way in which these purposes are to be achieved includes-- 19 (a) providing in division 3 for the resolution of financial matters by 20 de facto spouses; and 21 (b) providing in division 4 for the resolution of financial matters by 22 courts; and 23 (c) providing in division 5 for declaratory relief about the existence or 24 non-existence of de facto relationships; and 25 (d) providing in division 6 for the jurisdiction and powers of the 26 Supreme Court, the District Court and Magistrates Courts to deal 27 with matters under this part. 28 of pt 19 29 `Application `257.(1) This part applies to all de facto relationships other than 30 relationships that ended before the commencement of this section. 31

s7 12 s7 Property Law Amendment `(2) It does not matter whether a de facto relationship started before or 1 after the commencement of this section. 2 rights not affected 3 `Other `258. Nothing in this part affects a right of a de facto spouse to apply for 4 a remedy or relief under another law. 5 2--Interpretation 6 `Division 1--General 7 `Subdivision for pt 19 8 `Definitions `259. In this part-- 9 "account of a de facto proceeding" has the meaning given by section 268. 10 "child" of de facto spouses means-- 11 (a) a biological child of the de facto spouses; or 12 (b) a child of the female de facto spouse whose male de facto spouse 13 is presumed or proved to be the father of the child under an Act of 14 the Commonwealth or a State; or 15 (c) a child adopted by the de facto spouses; or 16 (d) a child who, at a time during the de facto relationship, is or was-- 17 (i) treated by either de facto spouse as a child of the relationship; 18 and 19 (ii) ordinarily a member of the de facto spouses' household. 20 "cohabitation agreement" has the meaning given by section 264. 21 "court" means a court having jurisdiction under this part.3 22 "court document" of a proceeding means-- 23 (a) a pleading in the proceeding; or 24 3 See section 329 (Courts having jurisdiction under pt 19)

s7 13 s7 Property Law Amendment (b) a transcript of evidence in the proceeding; or 1 (c) another document used in relation to the proceeding. 2 "de facto relationship" has the meaning given by section 261. 3 "de facto spouse" has the meaning given by section 260. 4 "financial matters" has the meaning given by section 262. 5 "financial resources" has the meaning given by section 263. 6 "monetary limit"-- 7 (a) for the District Court--has the meaning given by the District 8 Court Act 1967, section 68;4 and 9 (b) for a Magistrates Court--means the maximum amount claimable 10 under the Magistrates Courts Act 1921, section 4(a).5 11 "property adjustment order" means an order under section 286. 12 "publish" has the meaning given by section 267. 13 "recognised agreement" has the meaning given by section 266. 14 "separation agreement" has the meaning given by section 265. 15 `Subdivision 2--De facto spouse and relationship concepts 16 of "de facto spouse" 17 `Meaning `260.(1) A "de facto spouse" is either 1 of 2 persons, whether of the 18 same or the opposite sex, who are living or have lived together as a couple. 19 `(2) For subsection (1)-- 20 (a) 2 persons are a couple if they live together on a genuine domestic 21 basis in a relationship based on intimacy, trust and personal 22 commitment to each other; and 23 (b) 2 persons are not a couple only because they are cotenants. 24 4 District Court Act 1967, section 68(2) (District Court's civil jurisdiction)-- `"monetary limit" means $250 000.'. 5 Magistrates Courts Act 1921, section 4(a)-- `...the amount claimed is not more than $50 000...'.

s7 14 s7 Property Law Amendment of "de facto relationship" 1 `Meaning `261. A "de facto relationship" is the relationship between de facto 2 spouses. 3 `Subdivision 3--Financial matters and financial resources concepts 4 of "financial matters" 5 `Meaning `262. De facto spouses' "financial matters" are matters about the 6 property or financial resources of either or both of them. 7 of "financial resources" 8 `Meaning `263. A person's "financial resources" include the following-- 9 (a) a prospective claim or entitlement under a scheme, fund or 10 arrangement under which superannuation, resignation, 11 termination, retirement or similar benefits are provided to, or in 12 relation to, the person; 13 (b) property that, under a discretionary trust, may become vested in, 14 or applied to the benefit of, the person; 15 (c) property the disposition of which is wholly or partly under the 16 control of the person and that may be used or applied by or on 17 behalf of the person for the person's benefit; 18 (d) any other valuable benefit of the person. 19 `Subdivision 4--Cohabitation, separation and recognised agreement 20 concepts 21 of "cohabitation agreement" 22 `Meaning `264.(1) A "cohabitation agreement" is an agreement-- 23 (a) made by de facto spouses-- 24 (i) in contemplation of starting their de facto relationship; or 25 (ii) during their de facto relationship; and 26

s7 15 s7 Property Law Amendment (b) dealing with all or some of the de facto spouses' financial matters. 1 `(2) A "cohabitation agreement" includes a cohabitation agreement 2 varying a cohabitation agreement. 3 `(3) It does not matter whether-- 4 (a) a cohabitation agreement is made before or after the 5 commencement of this section; or 6 (b) there are other parties to a cohabitation agreement; or 7 (c) a cohabitation agreement deals with other matters. 8 of "separation agreement" 9 `Meaning `265.(1) A "separation agreement" is an agreement-- 10 (a) made by de facto spouses-- 11 (i) in contemplation of ending their de facto relationship; or 12 (ii) after their de facto relationship has ended; and 13 (b) dealing with all or some of the de facto spouses' financial matters. 14 `(2) A "separation agreement" includes a separation agreement varying 15 a cohabitation agreement or separation agreement. 16 `(3) It does not matter whether-- 17 (a) a separation agreement is made before or after the 18 commencement of this section; or 19 (b) there are other parties to a separation agreement; or 20 (c) a separation agreement deals with other matters. 21 of "recognised agreement" 22 `Meaning `266.(1) A "recognised agreement" of de facto spouses is a 23 cohabitation or separation agreement of the de facto spouses that-- 24 (a) is a written agreement; and 25 (b) is signed by the de facto spouses and witnessed by a justice of the 26 peace (qualified) or solicitor; and 27

s7 16 s7 Property Law Amendment (c) contains a statement of all significant property, financial resources 1 and liabilities of each de facto spouse when the de facto spouse 2 signs the agreement. 3 `(2) Whether all significant property, financial resources and liabilities of 4 a de facto spouse are stated depends on whether the value of a property, 5 financial resource or liability of the de facto spouse that is not stated is 6 significant given the total value of the de facto spouse's stated property, 7 financial resources and liabilities. 8 `Subdivision 5--Publication and account of a de facto proceeding 9 concepts 10 of "publish" 11 `Meaning `267.(1) A person "publishes" something if the person publishes the 12 thing or causes the thing to be published to the public or a section of the 13 public, including, for example-- 14 (a) in a newspaper, periodical or circular; or 15 (b) through radio or television; or 16 (c) by another form of communication, including, for example, 17 telephone, fax or computer. 18 `(2) In subsection (1)-- 19 "section of the public" includes an individual. 20 of "account of a de facto proceeding" 21 `Meaning `268. An "account of a de facto proceeding" is an account of all or part 22 of a proceeding under this part. 23

s7 17 s7 Property Law Amendment `Division 3--Resolution of financial matters by de facto spouses 1 `Subdivision 1--Purpose of division and use of agreements 2 of div 3 3 `Purpose `269.(1) The purpose of this division is to allow de facto spouses to plan 4 their financial future and resolve financial matters at the end of their 5 relationship. 6 `(2) This purpose is achieved by permitting de facto spouses to make 7 cohabitation and separation agreements that, in particular circumstances, 8 exclusively regulate the resolution of financial matters at the end of their 9 relationship. 10 and separation agreements are valid 11 `Cohabitation `270. De facto spouses may make cohabitation and separation 12 agreements. 13 jurisdiction may not be excluded 14 `Court's `271. A provision in an agreement purporting to exclude the jurisdiction 15 of a court in relation to a cohabitation or separation agreement is invalid, but 16 its invalidity does not affect the validity of the rest of the agreement. 17 of contract applies 18 `Law `272. A cohabitation or separation agreement is subject to, and 19 enforceable according to, the law of contract except as otherwise provided 20 by this part. 21 22 Example-- 23 The effect of mistake, fraud, duress, undue influence or unconscionability in 24 relation to a cohabitation or separation agreement is decided by the law of contract.

s7 18 s7 Property Law Amendment of de facto spouse's death 1 `Effect `273. If a de facto spouse dies before the provisions of a cohabitation 2 agreement or separation agreement have been carried out, the provisions 3 may be enforced on behalf of or against the estate of the deceased de facto 4 spouse unless the agreement expressly provides otherwise. 5 2--Relationship between recognised agreements and 6 `Subdivision proceedings 7 property adjustment order inconsistent with recognised 8 `No agreement 9 `274.(1) If a court is satisfied there is a recognised agreement, the court 10 must not make a property adjustment order inconsistent with the 11 agreement's provisions on financial matters. 12 `(2) Subsection (1) is subject to sections 275 and 276. 13 to ignore revoked provision 14 `Court `275. For section 274, a court must ignore a provision on a financial 15 matter if the de facto spouses have, in writing or by their conduct, revoked 16 the provision or consented to its revocation. 17 may vary recognised agreement if serious injustice or 18 `Court impracticable 19 `276.(1) On an application for a property adjustment order, the court may 20 vary all or any of the provisions of the agreement if the court is satisfied-- 21 (a) enforcement of the agreement would result in serious injustice for 22 a party to the agreement or a child of either of the de facto 23 spouses; or 24 (b) because of circumstances arising since the agreement was made, 25 it is impracticable for the agreement or part of the agreement to be 26 carried out. 27 `(2) It does not matter whether the agreement purports to prevent a 28 variation of all or any of the agreement's provisions. 29

s7 19 s7 Property Law Amendment `(3) If the court varies a provision of the agreement, section 274 applies 1 to the agreement as varied. 2 `(4) This section does not affect any other right a person may have to 3 have the agreement varied. 4 `(5) In this section-- 5 "law" includes a law of the Commonwealth or a State. 6 "vary" includes set aside. 7 `Subdivision 3--Relationship between agreements other than recognised 8 agreements and proceedings 9 cohabitation or separation agreements may be considered 10 `Other `277.(1) This section applies if, on an application for a property 11 adjustment order, a court is-- 12 (a) satisfied there is a cohabitation or separation agreement of the 13 de facto spouses; and 14 (b) not satisfied the agreement is a recognised agreement. 15 `(2) The court may make any order it could have made if there were no 16 cohabitation or separation agreement. 17 `(3) However, in making its order, the court may consider the 18 agreement's provisions on financial matters, in addition to the matters the 19 court is required to consider under division 4, subdivision 2.6 20 to ignore revoked provision 21 `Court `278. For section 277, a court must ignore a provision on a financial 22 matter if the de facto spouses have, in writing or by their conduct, revoked 23 the provision or consented to its revocation. 24 6 Division 4 (Resolution of financial matters by court), subdivision 2 (Adjustment of property interests)

s7 20 s7 Property Law Amendment `Division 4--Resolution of financial matters by court 1 `Subdivision 1--Declaration of property interests 2 of sdiv 1 3 `Purpose `279.(1) The purpose of this subdivision is to help persons ascertain their 4 existing rights in property of de facto spouses. 5 `(2) This purpose is achieved by allowing a court to declare the title or 6 rights of parties to a proceeding in property of de facto spouses. 7 may declare property interests 8 `Court `280.(1) In a proceeding between de facto spouses about existing title or 9 rights in property, a court may declare any title or rights a de facto spouse or 10 another party to the proceeding has in the property. 11 `(2) It does not matter whether or not the de facto relationship has ended. 12 may give effect to declaration 13 `Court `281. A court may make orders to give effect to a declaration under this 14 subdivision. 15 2--Adjustment of property interests 16 `Subdivision 1--General 17 `Subsubdivision of sdiv 2 18 `Purpose `282.(1) The purpose of this subdivision is to ensure a just and equitable 19 property distribution at the end of a de facto relationship. 20 `(2) This purpose is achieved by-- 21

s7 21 s7 Property Law Amendment (a) providing de facto spouses who satisfy the requirements 1 mentioned in subsubdivision 27 with particular property rights; 2 and 3 (b) allowing applications to a court for an adjustment of interests in 4 property. 5 facto spouse may apply 6 `De `283. After a de facto relationship has ended, a de facto spouse may 7 apply to a court for an order adjusting interests in the property of either or 8 both of the de facto spouses. 9 facto spouses or child may benefit from adjustment 10 `De `284. The application may be for the benefit of either or both of the 11 de facto spouses or a child of the de facto spouses. 12 affected by other rights 13 `Not `285.(1) An application may be made under this subdivision whether or 14 not an application for another remedy or relief has been made, or may be 15 made, under this part or another law. 16 `(2) In this section-- 17 "law" includes a law of the Commonwealth or a State. 18 may make property adjustment order 19 `Court `286.(1) A court may make any order it considers just and equitable 20 about the property of either or both of the de facto spouses adjusting the 21 interests of the de facto spouses or a child of the de facto spouses in the 22 property. 23 7 Subsubdivision 2 (Requirements for property adjustment proceedings)

s7 22 s7 Property Law Amendment `(2) In deciding what is just and equitable, a court must consider the 1 matters mentioned in subsubdivision 3.8 2 `(3) It does not matter whether the court has declared the title or rights in 3 the property. 4 `(4) In this section-- 5 "adjust", for interests of persons in property, includes give an interest in 6 the property to a person who had no previous interest in the property. 7 `Subsubdivision 2--Requirements for property adjustment proceedings 8 of de facto relationship 9 `Type `287. A court may make a property adjustment order only if it is 10 satisfied-- 11 (a) the de facto spouses have lived together in a de facto relationship 12 for at least 2 years; or 13 (b) there is a child of the de facto spouses who is under 18 years; or 14 (c) the de facto spouse who applied for the order has made 15 substantial contributions of the kind mentioned in section 291 or 16 2929 and failure to make the order would result in serious 17 injustice to the de facto spouse. 18 limit for making application 19 `Time `288.(1) A court may make a property adjustment order only if-- 20 (a) the application was made within 2 years after the day on which 21 the de facto relationship ended; or 22 (b) the court has given the applicant leave to apply. 23 8 Subsubdivision 3 (Matters for consideration in deciding what is just and equitable) 9 Section 291 (Contributions to property or financial resources) Section 292 (Contributions to family welfare)

s7 23 s7 Property Law Amendment `(2) The court may give leave only if it is satisfied hardship would result 1 to the applicant or a child of the de facto spouses if leave were not given. 2 of financial circumstances 3 `Disclosure `289.(1) A party to a proceeding for a property adjustment order must 4 disclose the party's financial circumstances in the way prescribed by the 5 rules, or a practice direction, of the relevant court. 6 `(2) A court may make a property adjustment order in favour of a party 7 only if the party has complied with subsection (1). 8 `(3) Nothing in this section affects a court's power to make an interim 9 order. 10 of child support and relevant orders 11 `Disclosure `290.(1) A party to a proceeding for a property adjustment order who is 12 aware of either of the following must inform the court about the support or 13 order-- 14 (a) any child support under the Child Support (Assessment) Act 1989 15 (Cwlth) provided, or to be provided, by a de facto spouse for a 16 child of the de facto spouses; 17 (b) any order affecting a de facto spouse or a child of the de facto 18 spouses made under a law of the Commonwealth or a State 19 concerning de facto relationships. 20 `(2) However, an order made in the proceeding for a property adjustment 21 order is not invalid only because the party does not inform the court about 22 the support or order. 23 3--Matters for consideration in deciding what is just 24 `Subsubdivision and equitable 25 to property or financial resources 26 `Contributions `291.(1) The court must consider the financial and non-financial 27 contributions made directly or indirectly by or for the de facto spouses or a 28 child of the de facto spouses to-- 29

s7 24 s7 Property Law Amendment (a) the acquisition, conservation or improvement of any of the 1 property of either or both of the de facto spouses; and 2 (b) the financial resources of either or both of the de facto spouses. 3 `(2) However, the non-financial contributions of a child of the de facto 4 spouses must be considered only if the child's contributions are substantial. 5 `(3) It does not matter whether the property or financial resources 6 mentioned in subsection (1) still belong to either or both of the de facto 7 spouses when the court is considering the contributions made. 8 to family welfare 9 `Contributions `292.(1) The court must consider the contributions, including any 10 homemaking or parenting contributions, made by either of the de facto 11 spouses or a child of the de facto spouses to the welfare of-- 12 (a) the de facto spouses; or 13 (b) the family constituted by the de facto spouses and 1 or more of 14 the following-- 15 (i) a child of the de facto spouses; 16 (ii) a person who is-- 17 (A) accepted by either of the de facto spouses into the 18 household of the de facto spouses; and 19 (B) dependent on either of the de facto spouses. 20 `(2) However, the contributions of a child of the de facto spouses must 21 be considered only if the child's contributions are substantial. 22 23 Example-- 24 A de facto couple own and live on a farm. They have twins, a boy and a girl. The 25 twins always lived on the farm. After the twins left school, the parents bought 26 2 additional farms. The son then worked on the farms for no wages assuming, in 27 time, 1 of the farms would be his. The daughter looked after the family's home for no 28 wages assuming, in time, 1 of the farms would be hers. In both cases, the children 29 did much more than the household chores (such as mowing the lawn and doing the 30 dishes) that a family might normally expect of family members. When the children 31 were 31 years, the parents separated.

s7 25 s7 Property Law Amendment 1 The son's contributions are substantial and would be considered under section 291. 2 The daughter's contributions are also substantial and would be considered under this 3 section. on future earning capacity 4 `Effect `293. The court must consider the effect of any proposed order on the 5 earning capacity of the de facto spouses. 6 hild support 7 `C `294. The court must consider any child support under the Child Support 8 (Assessment) Act 1989 (Cwlth) provided, or to be provided, by a de facto 9 spouse for a child of the de facto spouses. 10 orders 11 `Other `295. The court must consider any other order affecting a de facto spouse 12 or a child of the de facto spouses made under a law of the Commonwealth 13 or a State concerning de facto relationships the court considers should be 14 taken into account. 15 matters 16 `Other `296. The court must consider the matters mentioned in subsubdivision 4 17 to the extent they are relevant in deciding what order adjusting interests in 18 property is just and equitable. 19 `Subsubdivision 4--Additional matters for consideration to the relevant 20 extent in deciding what is just and equitable 21 and health 22 `Age `297. The court must consider the age and state of health of each of the 23 de facto spouses. 24

s7 26 s7 Property Law Amendment and employment capacity 1 `Resources `298. The court must consider-- 2 (a) the income, property and financial resources of each of the 3 de facto spouses; and 4 (b) the physical and mental capacity of each of them for appropriate 5 gainful employment. 6 for children 7 `Caring `299. The court must consider whether either de facto spouse has the care 8 of a child of the de facto spouses who is under 18 years. 9 commitments 10 `Necessary `300. The court must consider the commitments of each of the de facto 11 spouses necessary to enable the de facto spouse to support-- 12 (a) himself or herself; and 13 (b) a child or another person whom the de facto spouse has a duty to 14 maintain. 15 to support others 16 `Responsibility `301. The court must consider the responsibility of either de facto spouse 17 to support another person. 18 assistance 19 `Government `302.(1) The court must consider-- 20 (a) the eligibility of either de facto spouse for-- 21 (i) an Australian pension, allowance or benefit that is not 22 income tested; or 23 (ii) a foreign pension, allowance or benefit; and 24 (b) the amount of any pension, allowance or benefit mentioned in 25 paragraph (a) being paid to either de facto spouse. 26

s7 27 s7 Property Law Amendment `(2) The court must disregard-- 1 (a) the eligibility of either de facto spouse for an Australian pension, 2 allowance or benefit that is income tested; and 3 (b) the amount of any pension, allowance or benefit mentioned in 4 paragraph (a) being paid to either de facto spouse. 5 `(3) For this section, whether an Australian pension, allowance or benefit 6 is income tested depends on whether it is an income tested pension, 7 allowance or benefit within the meaning of the Family Law Act 1975 8 (Cwlth). 9 `(4) In this section-- 10 "Australian pension, allowance or benefit" means a pension, allowance 11 or benefit under the law of the Commonwealth or a State. 12 "foreign pension, allowance or benefit" means a pension, allowance or 13 benefit under the law of a foreign country. 14 standard of living 15 `Appropriate `303. If the de facto spouses have separated, the court must consider 16 what standard of living is reasonable for each of the de facto spouses in all 17 the circumstances. 18 to income and earning capacity 19 `Contributions `304. The court must consider the contributions made by either of the 20 de facto spouses to the income and earning capacity of the other de facto 21 spouse. 22 of relationship 23 `Length `305. The court must consider the length of the de facto relationship. 24 of relationship on earning capacity 25 `Effect `306. The court must consider the extent to which the de facto 26 relationship has affected the earning capacity of each of the de facto spouses. 27

s7 28 s7 Property Law Amendment circumstances of cohabitation 1 `Financial `307. If either de facto spouse is cohabiting with another person, the court 2 must consider the financial circumstances of the cohabitation. 3 maintenance 4 `Child `308. The court must consider any payments provided for the 5 maintenance of a child in the care of either de facto spouse. 6 facts and circumstances 7 `Other `309. The court must also consider any fact or circumstance the court 8 considers the justice of the case requires to be taken into account. 9 `Subsubdivision 5--Adjournment because of likely change in financial 10 circumstances 11 of significant change in financial circumstances 12 `Likelihood `310. A court may adjourn an application to adjust interests in the 13 property of either or both of the de facto spouses, if the court considers-- 14 (a) there is likely to be a significant change in the financial 15 circumstances of either or both of the de facto spouses and it is 16 reasonable to adjourn the application having regard to the time 17 when the change is likely to happen; and 18 (b) an order the court could make about the property if the change 19 happens is more likely to do justice between the parties than an 20 order the court could make immediately. 21 for consideration by court 22 `Matters `311. In considering whether there is likely to be a significant change in 23 the financial circumstances of either of the de facto spouses, the matters a 24 court may consider include any change in the financial circumstances of the 25 de facto spouse that may happen because of-- 26 (a) the vesting of a financial resource in the de facto spouse; or 27

s7 29 s7 Property Law Amendment (b) the use or application of a financial resource for the de facto 1 spouse's benefit. 2 may be made before adjournment 3 `Orders `312. Before a court adjourns an application to adjust interests in 4 property, it may make any order it considers appropriate about the property. 5 on other grounds not affected 6 `Adjournments `313. Section 31010 does not limit the power of the court to adjourn a 7 proceeding before it. 8 6--Change in circumstances 9 `Subsubdivision operation of order 10 `Delayed `314. If the court considers a de facto spouse is likely, within a short 11 time, to become entitled to property that may be applied in satisfaction of a 12 property adjustment order, the court may delay the operation of the order 13 until a day, or the happening of an event, stated in the order. 14 on proceeding of death of party 15 `Effect `315. If a party to a proceeding for a property adjustment order dies 16 before a final order has been made, a court may make an order if it 17 considers-- 18 (a) it would have adjusted interests in property if the deceased party 19 had not died; and 20 (b) it is still appropriate to adjust the interests despite the death of the 21 deceased party.11 22 10 Section 310 (Likelihood of significant change in financial circumstances) 11 See also the Succession Act 1981, section 66 (Survival of actions), `...on the death of any person ... all causes of action subsisting against or vested in the person shall survive against, or, ...for the benefit of, the person's estate.'.

s7 30 s7 Property Law Amendment `Division 5--Existence of a de facto relationship 1 `Subdivision 1--Declaration about existence of relationship 2 of div 5 3 `Purpose `316.(1) The purpose of this division is to avoid the duplication of 4 proceedings where the existence or non-existence of a de facto relationship 5 is relevant in 2 or more proceedings. 6 `(2) This purpose is achieved by allowing applications to a court for a 7 declaration about the existence or non-existence of a de facto relationship. 8 9 Example-- 10 A de facto spouse is killed in an accident at work. Whether or not the deceased's 11 de facto spouse is eligible for compensation under the WorkCover Queensland Act 12 1996 or may claim family provision under the Succession Act 1981 will depend on 13 whether the de facto spouses were living in a de facto relationship at the time of 14 death. It will avoid duplication of proceedings if this matter were litigated once only. 15 Note, however, that even when the existence or non-existence of a de facto 16 relationship is declared, additional requirements may apply for particular purposes. 17 Sometimes, a de facto relationship must exist for a minimum period, which may or 18 may not be shortened if there is a child of the relationship. Sometimes, the 19 relationship must exist at a particular time, for example, when a de facto spouse in 20 the relationship dies. 21 `Application `317. A person may apply to the Supreme Court or the District Court for 22 a declaration that-- 23 (a) there is, or has been, a de facto relationship between the person 24 and another named person or between 2 named persons at a 25 particular time or for a particular period; or 26 (b) there is not, or was not, a de facto relationship between the person 27 and another named person or between 2 named persons at a 28 particular time or for a particular period. 29

s7 31 s7 Property Law Amendment may adjourn hearing if other affected person 1 `Court `318.(1) This section applies if, on an application under this subdivision, 2 a court considers-- 3 (a) a person whose interests would be affected by the making of a 4 declaration-- 5 (i) is not present or represented at the hearing of the application; 6 or 7 (ii) has not been given the opportunity to be present or 8 represented at the hearing of the application; and 9 (b) the person ought to be present or represented at the hearing. 10 `(2) The court may adjourn the hearing to enable the person to be given 11 an opportunity to be present or represented. 12 may make declaration about existence of relationship 13 `Court `319. If, on an application under this subdivision, the court is satisfied 14 there is, or was, a de facto relationship between the named persons at a 15 particular time or for a particular period, the court may make a declaration to 16 that effect. 17 may make declaration about non-existence of relationship 18 `Court `320. If, on an application under this subdivision, the court is satisfied 19 there is not, or was not, a de facto relationship between the named persons 20 at a particular time or for a particular period, the court may make a 21 declaration to that effect. 22 to include date 23 `Declaration `321. A declaration must include either or both of the following-- 24 (a) the date at which there was, or was not, a de facto relationship; 25 (b) the dates between which there was, or was not, a de facto 26 relationship. 27

s7 32 s7 Property Law Amendment of de facto spouses irrelevant 1 `Death `322. A declaration may be made whether or not the person or either of 2 the persons named by the applicant as a de facto spouse or de facto spouses 3 in the de facto relationship is alive. 4 of declaration 5 `Effect `323.(1) A declaration made by a court has effect as a judgment of the 6 court. 7 `(2) The persons named in the declaration are presumed, as stated in the 8 declaration, to have had or not to have had a de facto relationship at the date 9 stated in the declaration, between the dates stated in the declaration or both. 10 `(3) Subsection (2) applies for all purposes. 11 `Subdivision 2--Revocation of declaration 12 or affected person may apply 13 `Party `324. If a declaration has been made under subdivision 112-- 14 (a) a person who applied, or could have applied, for the declaration; 15 or 16 (b) a person who is affected by the declaration; 17 may apply to the court that made the declaration for a revocation of the 18 declaration. 19 may adjourn hearing if other affected person 20 `Court `325.(1) This section applies if, on an application under this subdivision, 21 a court considers-- 22 (a) a person whose interests would be affected by the making of a 23 declaration-- 24 12 Subdivision 1 (Declaration about existence of relationship)

s7 33 s7 Property Law Amendment (i) is not present or represented at the hearing of the application; 1 or 2 (ii) has not been given the opportunity to be present or 3 represented at the hearing of the application; and 4 (b) the person ought to be present or represented at the hearing. 5 `(2) The court may adjourn the hearing to enable the person to be given 6 an opportunity to be present or represented. 7 may revoke declaration 8 `Court `326. On an application under this subdivision, the court may make an 9 order revoking the declaration if satisfied-- 10 (a) a new fact or circumstance has arisen that has not previously been 11 disclosed to the court; and 12 (b) if the applicant was a party to the application for the declaration, 13 the fact or circumstance was not within the applicant's knowledge 14 when the declaration was made. 15 may make ancillary orders 16 `Court `327.(1) If a court makes an order revoking a declaration, the court may, 17 if it considers it would be just and equitable to do so, make any ancillary 18 order necessary to place a person affected by the revocation of the 19 declaration in the same position, as far as practicable, as the person would 20 have been in if the declaration had not been made. 21 `(2) Without limiting subsection (1), the court may make an order 22 varying rights in property or the financial resources of de facto spouses or 23 another person. 24 of revocation 25 `Effect `328.(1) If the court makes an order revoking a declaration, the 26 declaration ceases to have effect. 27 `(2) The revocation of the declaration does not affect anything done in 28 reliance on the declaration before the order revoking the declaration was 29 made. 30

s7 34 s7 Property Law Amendment `Division 6--Courts 1 `Subdivision 1--Jurisdiction 2 having jurisdiction under pt 19 3 `Courts `329.(1) The Supreme Court and the District Court have jurisdiction 4 under division 513 to make or revoke a declaration. 5 `(2) The Supreme Court and, subject to subsection (4), the District Court 6 and the Magistrates Courts each have jurisdiction to hear and decide all other 7 matters under this part. 8 `(3) The Uniform Civil Procedure Rules 1999, rule 3514 does not apply 9 to a proceeding under this part. 10 `(4) In a proceeding, the District Court or a Magistrates Court may make 11 an order or declaration concerning an interest in property if the value of the 12 interest is more than the court's monetary limit only if-- 13 (a) for the District Court--a document has been filed under the 14 District Court Act 1967, section 72;15 or 15 (b) for a Magistrates Court--a document has been filed under the 16 Magistrates Courts Act 1921, section 4A.16 17 or dismissal of proceeding in relation to same person 18 `Stay `330.(1) If there is a proceeding under this part started by or in relation to 19 the same person pending in more than 1 court, a court in which a 20 proceeding is pending may-- 21 (a) stay the proceeding pending before it for the time it considers 22 appropriate; or 23 13 Division 5 (Existence of a de facto relationship) 14 Uniform Civil Procedure Rules 1999, rule 35 (General rule) provides that a person must start a proceeding before a court in 1 of the districts mentioned. 15 District Court Act 1967, section 72 (Consent jurisdiction) 16 Magistrates Courts Act 1921, section 4A (Consent jurisdiction)

s7 35 s7 Property Law Amendment (b) dismiss the proceeding. 1 `(2) Before staying or dismissing a proceeding, a court may make any 2 orders and give any directions it considers appropriate. 3 of proceeding to more appropriate court 4 `Transfer `331.(1) A court may transfer a pending proceeding to another court 5 having jurisdiction under this part if the first court considers it is more 6 appropriate for the proceeding to be dealt with in the other court. 7 `(2) Before transferring a proceeding, a court may make any orders and 8 give any directions it considers appropriate pending the disposal of the 9 proceeding by the court to which the proceeding is transferred. 10 `Subdivision 2--Powers 11 of sdiv 2 12 `Purpose `332. The purpose of this subdivision is to ensure the courts having 13 jurisdiction under this part have adequate powers to make appropriate 14 orders. 15 powers 16 `Court's `333.(1) In exercising its powers under this part, a court may do any 1 or 17 more of the following-- 18 (a) order the transfer of property; 19 (b) order the sale of property, and the distribution of the proceeds of 20 sale in any proportions the court considers appropriate; 21 (c) order that a document be executed, that a document of title be 22 produced or that anything else be done to enable an order to be 23 carried out effectively or to provide security for the performance 24 of an order; 25 (d) order payment of a lump sum, whether in a single amount or by 26 instalments; 27

s7 36 s7 Property Law Amendment (e) order that payment of an amount ordered to be paid be wholly or 1 partly secured in a way the court directs; 2 (f) appoint or remove a receiver or trustees; 3 (g) make an order or grant an injunction-- 4 (i) for the protection of, or otherwise relating to, the property or 5 financial resources of a party to an application; or 6 (ii) to aid enforcement of another order made in relation to an 7 application; 8 (h) make an order or grant an injunction about the use or occupancy 9 of the de facto spouses' home; 10 (i) if a de facto spouse is the lessee of the home in which the de facto 11 spouses have lived and on separation the other de facto spouse 12 wishes to remain in the home, the court may, with the consent of 13 the lessor, order that the lease be assigned from the lessee to the 14 other de facto spouse; 15 (j) order that payments be made direct to a de facto spouse, to a 16 trustee or into court for the benefit of a de facto spouse; 17 (k) make a final order or grant a final injunction; 18 (l) make an order or grant an injunction-- 19 (i) pending the disposal of the proceeding; or 20 (ii) for a fixed term or for life or during joint lives; or 21 (iii) until the happening of a particular event, including, for 22 example, a further order; 23 (m) impose conditions; 24 (n) make an order by consent; 25 (o) make any other order or grant any other injunction it considers 26 necessary to do justice. 27 `(2) This section does not affect any other power of the court under this 28 part or another law. 29

s7 37 s7 Property Law Amendment `(3) This section applies for a Magistrates Court despite the Magistrates 1 Courts Act 1921, section 7.17 2 `(4) In this section-- 3 "law" includes a law of the Commonwealth. 4 and setting aside of orders 5 `Variation `334.(1) On the application of a person in relation to whom an order has 6 been made under this part, a court may vary the order if satisfied-- 7 (a) there has been a miscarriage of justice because of fraud, duress, 8 suppression of evidence, the giving of false evidence, failing to 9 disclose matters as required by this part or another circumstance; 10 or 11 (b) because of circumstances that have arisen since the order was 12 made, it is impracticable for the order or part of the order to be 13 carried out; or 14 (c) a person has defaulted in carrying out an obligation imposed on 15 the person by the order and, because of circumstances that have 16 arisen because of the default, it is just and equitable to vary the 17 order; or 18 (d) a child of the de facto spouses (or the applicant if the applicant has 19 the care of a child of the de facto spouses) will suffer hardship if 20 the court does not vary the order because of circumstances of an 21 exceptional nature relating to the welfare of the child that have 22 arisen since the order was made.18 23 `(2) In this section-- 24 "vary" includes-- 25 (a) set aside; and 26 (b) set aside and substitute another. 27 17 Magistrates Courts Act 1921, section 7 (Title to land etc.) 18 See also Uniform Civil Procedure Rules 1999, rule 667 (Setting aside).

s7 38 s7 Property Law Amendment to defeat claims 1 `Transactions `335.(1) If a court is satisfied an existing or anticipated order in a 2 proceeding under this part is likely to be defeated by the making of a 3 document or disposition by a party to the proceeding, the court may set 4 aside or restrain the making of the document or disposition. 5 `(2) If a court is satisfied an order in a proceeding under this part was 6 defeated by the making of a document or disposition by a party to the 7 proceeding, the court may order that-- 8 (a) any property dealt with by the document or disposition be applied 9 towards, or charged with, payment of-- 10 (i) an amount payable under a property adjustment order; or 11 (ii) costs; or 12 (b) the proceeds of a sale of the property be paid into court to await its 13 order. 14 `(3) A court may order a party, or person acting in collusion with a party, 15 to pay the costs of-- 16 (a) another party; or 17 (b) a purchaser in good faith; or 18 (c) another interested person. 19 `(4) The costs mentioned in subsection (3) are the costs of and incidental 20 to-- 21 (a) the document or disposition; or 22 (b) the setting aside or restraining of the document or disposition. 23 `(5) For this section, something is made by a person if the thing is made 24 by or on behalf of, or by direction or in the interests of, the person. 25 `(6) For this section, it does not matter whether the document or 26 disposition is or was intended to defeat the order it is likely to defeat or has 27 defeated. 28

s7 39 s7 Property Law Amendment of other parties 1 `Interests `336.(1) In the exercise of its powers under this part, a court must have 2 regard to the interest in the property of, and must make any order proper for 3 the protection of, a purchaser in good faith and other interested persons. 4 `(2) A court may order that a person be given notice of a proceeding or 5 be made a party to the proceeding on the application of the person or if it 6 appears to the court the person may be affected by an order under this part. 7 of court to end financial relationship 8 `Duty `337. In a proceeding under division 4, subdivision 2,19 a court must 9 make orders that, as far as practicable, will end the financial relationship 10 between the de facto spouses. 11 3--Miscellaneous matters concerning proceedings 12 `Subdivision `Subsubdivision 1--Intervention 13 for leave 14 `Application `338. A person may apply for leave to intervene in a proceeding under 15 this part. 16 to intervene 17 `Leave `339.(1) A court may give a person leave to intervene in a proceeding 18 before the court. 19 `(2) The court may give leave subject to any conditions it considers 20 appropriate. 21 19 Division 4 (Resolution of financial matters by court), subdivision 2 (Adjustment of property interests)

s7 40 s7 Property Law Amendment rights 1 `Intervener's `340. A person who intervenes in a proceeding by leave of the court is a 2 party to the proceeding with all the rights, duties and liabilities of a party 3 unless the court orders otherwise. 4 `Subsubdivision 2--Costs 5 bears own costs 6 `Party `341.(1) A party to a proceeding under this part bears the party's own 7 costs. 8 `(2) However, if the court is satisfied there are circumstances justifying it 9 making an order, it may make any order for costs or security for costs it 10 considers appropriate. 11 `(3) The court may make an order at any stage of the proceeding or after 12 the proceeding ends. 13 `(4) In considering whether there are circumstances justifying it making 14 an order, the court must consider the following matters-- 15 (a) the income, property and financial resources of each of the parties; 16 (b) whether any party has legal aid and the terms of the legal aid; 17 (c) the conduct of each of the parties in relation to the proceeding, 18 including, for example, conduct about pleadings, particulars, 19 disclosure, inspection, interrogatories, admissions of facts and 20 production of documents; 21 (d) whether the proceeding results from a party's failure to comply 22 with a previous order made under this part; 23 (e) whether any party has been wholly unsuccessful in the 24 proceeding; 25 (f) whether any party made an offer to settle under the Uniform Civil 26 Procedure Rules 1999 20 and the terms of the offer; 27 20 See Uniform Civil Procedure Rules 1999, Chapter 9 (Ending proceedings early), part 5 (Offer to settle).

s7 41 s7 Property Law Amendment (g) any fact or circumstance the court considers the justice of the case 1 requires to be taken into account. 2 3--Publication of proceedings 3 `Subsubdivision authorised publication 4 `Specifically `342.(1) A person may publish an account of a de facto proceeding in the 5 following ways-- 6 (a) by communicating, to a person involved in another proceeding in 7 any court, a court document from the de facto proceeding for use 8 in the other proceeding; 9 (b) by communicating a court document from the de facto proceeding 10 to-- 11 (i) a body responsible for disciplining members of the legal 12 profession; or 13 (ii) a person involved in a disciplinary proceeding against a 14 member of the legal profession; 15 (c) by communicating, to a body that grants legal aid, a court 16 document from the de facto proceeding for use in deciding 17 whether legal aid should be provided or continued in a particular 18 case; 19 (d) by publishing a notice or report about the de facto proceeding by 20 direction of a court; 21 (e) by publishing an account of the de facto proceeding in a 22 publication that is-- 23 (i) genuinely intended primarily for use by the members of a 24 profession; and 25 (ii) a separate volume or part of a series of law reports or 26 another publication of a technical character; 27 (f) by publishing an account of the de facto proceeding to-- 28 (i) a member of a profession in relation to the member's 29 practice of the profession; or 30

s7 42 s7 Property Law Amendment (ii) a student in relation to the student's studies. 1 `(2) In this section-- 2 "court" means a court or tribunal established under a law of the 3 Commonwealth or a State. 4 identification in general publication 5 `No `343.(1) A person may publish an account of a de facto proceeding only 6 if the publication does not identify-- 7 (a) a party to the proceeding; or 8 (b) a witness in the proceeding; or 9 (c) another person who is, or is alleged to be, involved in a matter 10 relevant to the proceeding; or 11 (d) a person related to, or associated with, a person mentioned in 12 paragraph (a), (b) or (c). 13 `(2) A publication identifies a person if it is sufficient to identify the 14 person to-- 15 (a) a member of the public; or 16 (b) a member of the section of the public to whom the publication 17 was made. 18 `(3) Subsection (1) does not apply to a publication under section 342. 19 20 `Offence `344.(1) A person must not publish an account of a de facto proceeding 21 other than under section 342 or 343. 22 Maximum penalty--40 penalty units. 23 `(2) A proceeding for an offence against this section may be started only 24 with the written consent of the director of public prosecutions. 25 `(3) A document purporting to be a consent mentioned in subsection (2) 26 is taken to be the consent, and to have been properly given, unless the 27 contrary is established.'. 28

s8 43 s8 Property Law Amendment ART 3--CONSEQUENTIAL AMENDMENTS 1 P amended in schedule 2 Acts Clause 8. The schedule amends the Acts it mentions. 3 4

44 Property Law Amendment SCHEDULE 1 � CTS AMENDED 2 A section 8 3 AGISTRATES COURTS ACT 1921 4 �M 1. Section 45(1)-- 5 insert-- 6 `(d) in a proceeding under the Property Law Act 1974, part 19, 7 division 4, subdivision 1;21'. 8 TAMP ACT 1894 9 �S 1. After section 72-- 10 insert-- 11 `De facto relationship instruments exempt from duty 12 `72A.(1) A de facto relationship instrument is exempt from stamp duty. 13 `(2) In this section-- 14 "de facto relationship instrument" means an instrument, to the extent the 15 instrument is, or is made under, an order of a court under the Property 16 Law Act 1974, part 19.22'. 17 21 Property Law Act 1974, part 19 (Property (De facto Relationships)), division 4 (Resolution of financial matters by court), subdivision 1 (Declaration of property interests) 22 Property Law Act 1974, part 19 (Property (De Facto Relationships))

45 Property Law Amendment SCHEDULE (continued) 2. Schedule 1, under the heading `Application for registration or 1 application for transfer of registration of a motor vehicle', 2 exemption 5A, after `spouse,'-- 3 insert-- 4 ` de facto spouse, '. 5 3. Schedule 1, under the heading `Conveyance or transfer', 6 paragraph (4), proviso (xvi), after `subsisting marriage'-- 7 insert-- 8 `or a subsisting de facto relationship'. 9 4. Schedule 1, under the heading `Conveyance or transfer', 10 paragraph (4), proviso (xvi), after `the marriage'-- 11 insert-- 12 `or the relationship'. 13 5. Schedule 2-- 14 insert-- 15 ` "de facto relationship" means the relationship between de facto spouses. 16 "de facto spouse"-- 17 1. A "de facto spouse" is either 1 of 2 persons, whether of the same 18 or the opposite sex, who are living or have lived together as a 19 couple. 20 2. For subsection (1)-- 21 (a) 2 persons are a couple if they live together on a genuine 22 domestic basis in a relationship based on intimacy, trust and 23 personal commitment to each other; and 24 (b) 2 persons are not a couple only because they are cotenants.'. 25

46 Property Law Amendment � State of Queensland 1999

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