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TASMANIA
__________
RELATIONSHIPS BILL 2003
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
4. Significant relationships
5. Caring relationships
6. Personal relationships
7. Family relationships
8. Application of Act
9. Other remedy and relief not excluded
10. Declaration of interests in property
PART 2 REGISTRATION OF DEED OF
RELATIONSHIP
11. Application to register deed of relationship
12. Withdrawal of application
13. Registration of deed of relationship
14. Effect of registration of deed of relationship
15. Revocation of deed of relationship
16. Notice of revocation
[Bill 48]-I
17. When does revocation take place?
18. Court may order retention or revocation of deed of
relationship
PART 3 THE RELATIONSHIPS REGISTER
Division 1 Keeping the Register
19. The Register
Division 2 Access to, and certification of, Register
entries
20. Access to Register
21. Search of Register
22. Protection of privacy
23. Issue of certificate
24. Access policies
25. Review
26. False or misleading statements
27. Unauthorised access to or interference with Register
28. Falsification of certificate
29. Immunity from liability
30. Fees
PART 4 JURISDICTION
31. Limit of jurisdiction of Magistrates Court
32. Stay and transfer of proceedings
33. Transfer of proceedings from Magistrates Court
34. Transfer of proceedings from Supreme Court
35. Courts aiding each other
PART 5 PROCEEDINGS FOR FINANCIAL
ADJUSTMENT AND MAINTENANCE
Division 1 Preliminary
36. Application for adjustment or maintenance
37. Prerequisites for making of order
2
38. Time limit for making application
39. Order to end financial relationship
Division 2 Adjustment of interest in property
40. Order for adjustment
41. Adjournment because of significant change in
circumstances
42. Adjournment because of proceedings in Family Court
43. Deferment of order
44. Death before order made
45. Death after order made
Division 3 Maintenance
46. Right to maintenance
47. Order for maintenance
48. Interim maintenance
49. Subsequent relationship or marriage
50. Cessation of order
51. Recovery of arrears
52. Variation of order for periodic maintenance
53. Other maintenance orders not to be varied
Division 4 General
54. Orders of court
55. Execution of instruments
56. Ex parte orders
57. Variation and setting aside of orders
58. Transactions to defeat claims
59. Interests of other parties
PART 6 AGREEMENTS
60. Entering into agreements
61. Agreements subject to law of contract
62. Effect of agreements in certain proceedings
3
63. Variation of terms of cohabitation and separation
agreements
64. Revocation of agreements
65. Effect of death of partner
PART 7 MISCELLANEOUS
66. Declaration of existence of personal relationship
67. Enforcement of orders for payment
68. Costs
69. Enforcement of other orders
70. Rules of court
71. Regulations
72. Administration of Act
73. Savings and transitional
74. De Facto Relationship Act 1999 repealed
75. De Facto Relationship Regulations 2000 rescinded
4
RELATIONSHIPS BILL 2003
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to make provision with respect to certain
relationships
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
PART 1 PRELIMINARY
Short title
1. This Act may be cited as the Relationships Act 2003.
Commencement
2. This Act commences on a day to be proclaimed.
Interpretation
3. In this Act
"caring relationship" see section 5;
"child" includes
[Bill 48] 5
s. 3 No. Relationships 2003
(a) a child of which the partners are the
natural parents; and
(b) a child of a female whose male partner is
treated as the father of the child under
section 10C of the Status of Children Act
1974; and
(c) a child of a female whose female partner
is treated as a parent of the child under
section 10C of the Status of Children Act
1974; and
(d) a child adopted by the partners;
"court" means
(a) the Supreme Court; or
(b) the Magistrates Court;
"disposition" includes a sale or gift;
"family relationship" see section 7;
"financial matters" means matters relating to any
one or more of the following:
(a) the maintenance of either or both of the
partners;
(b) the income or property of either or both
of the partners;
(c) the financial resources of either or both
of the partners;
"financial resources" includes
(a) a prospective claim or entitlement in
respect of a scheme, fund or
arrangement under which
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2003 Relationships No. s. 3
superannuation, retirement or similar
benefits are provided; and
(b) property that under the provisions of a
discretionary trust may become vested
in or used or applied in or towards the
purposes, or for the benefit, of either or
both partners or of any third party at
their direction; and
(c) property, the alienation or disposition of
which is wholly or partly under the
control of either or both partners and
which is lawfully capable of being used
or applied by or on behalf of either or
both partners in or towards their
purposes or for their benefit or that of
any third party at their direction; and
(d) an indexed pension; and
(e) any other valuable benefit;
"Magistrates Court" means the Magistrates Court
(Civil Division) established under the
Magistrates Court (Civil Division) Act 1992;
"marriage" means a marriage under the Marriage
Act 1961 of the Commonwealth;
"order" means an order under Part 5;
"partner" means a person who is or has been in a
personal relationship;
"periodic maintenance" means maintenance paid
or payable as a weekly, fortnightly, monthly,
yearly or other periodic sum;
"personal relationship" see section 6;
7
s. 3 No. Relationships 2003
"personal relationship agreement" means an
agreement or a variation of an agreement
between two persons, whether or not there are
other parties to the agreement
(a) that is made before, on or after the
commencement of this Act
(i) in contemplation of their entering
into a personal relationship; or
(ii) during the existence of their
personal relationship; and
(b) that provides for financial matters,
whether or not it provides for other
matters;
"property" includes
(a) real and personal property; and
(b) any estate or interest (whether a
present, future or contingent estate or
interest) in real or personal property;
and
(c) money and any debt; and
(d) any cause of action for damages; and
(e) any other chose in action; and
(f) any right with respect to property;
"Register" means the Relationships Register
maintained under section 19;
"Registrar" means the Registrar of Births, Deaths
and Marriages holding office under the Births,
Deaths and Marriages Registration Act 1999;
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2003 Relationships No. s. 4
"regulations" means the regulations in force under
this Act;
"separation agreement" means an agreement or a
variation of an agreement between partners,
whether or not there are other parties to the
agreement, and an agreement which varies a
personal relationship agreement
(a) that is made before, on or after the
commencement of this Act
(i) in contemplation of the
termination of the personal
relationship; or
(ii) after the termination of the
personal relationship; and
(b) that provides for financial matters,
whether or not it provides for other
matters;
"significant relationship" see section 4.
Significant relationships
4. (1) For the purposes of this Act, a significant
relationship is a relationship between two adult persons
(a) who have a relationship as a couple; and
(b) who are not married to one another or related
by family.
(2) If a significant relationship is registered under
Part 2, proof of registration is proof of the relationship.
(3) If a significant relationship is not registered
under Part 2, in determining whether two persons are in a
9
s. 5 No. Relationships 2003
significant relationship, all the circumstances of the
relationship are to be taken into account, including such of
the following matters as may be relevant in a particular
case:
(a) the duration of the relationship;
(b) the nature and extent of common residence;
(c) whether or not a sexual relationship exists;
(d) the degree of financial dependence or
interdependence, and any arrangements for
financial support, between the parties;
(e) the ownership, use and acquisition of property;
(f) the degree of mutual commitment to a shared
life;
(g) the care and support of children;
(h) the performance of household duties;
(i) the reputation and public aspects of the
relationship.
(4) No finding in respect of any of the matters
mentioned in subsection (3)(a) to (i), or in respect of any
combination of them, is to be regarded as necessary for the
existence of a significant relationship, and a court
determining whether such a relationship exists is entitled
to have regard to such matters, and to attach such weight
to any matter, as may seem appropriate to the court in the
circumstances of the case.
Caring relationships
5. (1) For the purposes of this Act, a caring relationship is
a relationship other than a marriage or significant
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2003 Relationships No. s. 5
relationship between two adult persons whether or not
related by family, one or each of whom provides the other
with domestic support and personal care.
(2) For the purposes of subsection (1), a caring
relationship is taken not to exist between two persons
where one of them provides the other with domestic
support and personal care
(a) for fee or payment in the nature of wages; or
(b) under an employment relationship between
the persons; or
(c) on behalf of another person or an organisation
(including a government or government
agency, a body corporate or a charitable or
benevolent organisation).
(3) For the purpose of subsection (2)(a), a fee does
not include a carer allowance or carer payment under the
Social Security Act 1991 of the Commonwealth made to a
party to a caring relationship in respect of care provided
by that party to the other party to the relationship.
(4) If a caring relationship is registered under
Part 2, proof of registration is proof of the relationship.
(5) If a caring relationship is not registered under
Part 2, in determining whether two persons are in a caring
relationship, all the circumstances of the relationship are
to be taken into account including such of the following
matters as may be relevant in a particular case:
(a) the duration of the relationship;
(b) the nature and extent of common residence;
(c) the degree of financial dependence or
interdependence, and any arrangements for
financial support, between the parties;
11
s. 6 No. Relationships 2003
(d) the ownership, use and acquisition of property;
(e) the degree of mutual commitment to a shared
life;
(f) the performance of household duties;
(g) the reputation and public aspects of the
relationship;
(h) the level of personal care and domestic support
provided by one or each of the partners to the
other.
(6) No finding in respect of any of the matters
mentioned in subsection (5)(a) to (h), or in respect of any
combination of them, is to be regarded as necessary for the
existence of a caring relationship, and a court determining
whether such a relationship exists is entitled to have
regard to such matters, and to attach such weight to any
matter, as may seem appropriate to the court in the
circumstances of the case.
Personal relationships
6. For the purposes of this Act, a personal relationship is
(a) a significant relationship; or
(b) a caring relationship.
Family relationships
7. (1) For the purposes of sections 4 and 5, persons are
related by family if
(a) one is the parent, or another ancestor, of the
other; or
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2003 Relationships No. s. 8
(b) one is the child, or another descendant, of the
other; or
(c) they have a parent in common.
(2) For the purposes of this section
(a) a person is taken to be an ancestor or
descendant of another person even if the
relationship between them is traced through,
or to, a person who is or was an adopted child;
and
(b) the relationship of the parent and child
between an adoptive parent and an adopted
child is taken to continue even though the
order by which the adoption was effected has
been annulled, cancelled or discharged or the
adoption has otherwise ceased to be effective;
and
(c) the relationship between an adopted child and
the adoptive parent, or each of the adoptive
parents, is taken to be or to have been the
natural relationship of child and parent; and
(d) a person who has been adopted more than once
is taken to be the child of each person by
whom he or she has been adopted.
Application of Act
8. This Act does not apply to
(a) a personal relationship that ceased before the
commencement of this Act; or
(b) a person who was a partner in a personal
relationship that ceased before the
13
s. 9 No. Relationships 2003
commencement of this Act in relation to
matters arising out of that relationship.
Other remedy and relief not excluded
9. This Act does not exclude any other form of remedy or
relief under any other Act or law.
Declaration of interests in property
10. (1) In proceedings between partners relating to
existing title or rights in property, a court may declare any
title or rights that a partner has in respect of the property.
(2) In making a declaration under subsection (1), the
court may make any order to give effect to the declaration.
(3) An order under this section is binding on
(a) the partners; and
(b) any other person who was given
(i) notice of the proceedings; and
(ii) the opportunity of being heard.
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2003 Relationships No. s. 11
PART 2 REGISTRATION OF DEED OF
RELATIONSHIP
Application to register deed of relationship
11. (1) Two adult persons
(a) who are domiciled or ordinarily resident in the
State; and
(b) who are not married or a party to a deed of
relationship; and
(c) who are in a significant or caring
relationship
may apply to the Registrar, in a form approved by the
Registrar, for registration of a deed of relationship in
relation to that significant or caring relationship.
(2) An application under subsection (1) is to be
accompanied by
(a) a statutory declaration from each of the
applicants verifying that the person who is the
subject of the application
(i) consents to the registration; and
(ii) is not married; and
(iii) is not a party to a deed of relationship or
in another personal relationship; and
(b) evidence of the identity and age of each
applicant (as provided for in the form of
application); and
(c) in the case of a caring relationship, a
certificate referred to in subsection (3); and
15
s. 12 No. Relationships 2003
(d) the fee prescribed under section 30(1)(a); and
(e) any other document or information that the
Registrar requires.
(3) Each party to a caring relationship must lodge a
certificate, in a form approved by the Registrar, from a
solicitor of the Supreme Court of Tasmania which states
that the solicitor provided legal advice to that party,
independently of the other party to the relationship, as
to
(a) the effect of the registration of a deed of
relationship on the rights of the parties; and
(b) the advantages and disadvantages, at the time
that the advice was provided, to the party of
registering a deed of relationship.
Withdrawal of application
12. (1) Either party to an application for the registration
of a deed of relationship or both parties to the deed jointly
may, within the period referred to in subsection (2) by
notice in writing to the Registrar, withdraw the
application.
(2) The notice referred to in subsection (1) is to be
given to the Registrar within 28 days of the date of the
lodgment of the application or the provision of additional
information referred to in section 11(2)(e), whichever is the
later.
Registration of deed of relationship
13. (1) The Registrar must not make a decision regarding
registration of a deed of relationship until after the expiry
of 28 days from the receipt of the application.
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2003 Relationships No. s. 14
(2) Prior to making a decision, the Registrar may
require the person or persons who signed the application
to provide further particulars as the Registrar requires.
(3) Unless the application is withdrawn, at the
expiration of 28 days following lodgment or following the
provision of additional information if requested by the
Registrar under subsection (2), the Registrar must within
a reasonable time
(a) register the deed of relationship by making an
entry in the Register; or
(b) refuse to register the deed of relationship.
(4) The Registrar must not register the deed of
relationship if either of the persons is married or a party to
a deed of relationship.
Effect of registration of deed of relationship
14. If a deed of relationship is registered under this Part,
the persons are, for the purposes of, but subject to, any law
in force in this State, taken to be in a personal
relationship.
Revocation of deed of relationship
15. (1) A deed of relationship is revoked by
(a) the death of either party to the deed; or
(b) the marriage of either party to the deed.
(2) A deed of relationship may be revoked by
(a) an order of a court; or
17
s. 16 No. Relationships 2003
(b) on the application to the Registrar of either
party to the deed or both parties to the deed
jointly in accordance with section 16.
Notice of revocation
16. (1) Either party to a deed of relationship or both
parties jointly may, on payment of the fee prescribed
under section 30(1)(b), apply to the Registrar in a form
approved by the Registrar for the revocation of the deed.
(2) If one party to the deed of relationship makes an
application under subsection (1), the application is to be
accompanied by proof of service on the other party to the
deed.
(3) The Registrar is not to consider an application
under subsection (1) unless it is accompanied by proof of
service on the other party to the deed.
(4) A person who lodged an application for the
revocation of a deed of relationship may, by notice in
writing to the Registrar within 90 days of the day on which
it was lodged with the Registrar and with the consent of
the other party to the deed, withdraw the application.
When does revocation take place?
17. At the expiry of 90 days from the date of lodgment of
the application, the Registrar must revoke the deed of
relationship unless
(a) the application is withdrawn under
section 16(4); or
(b) a court directs otherwise.
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2003 Relationships No. s. 18
Court may order retention or revocation of deed of
relationship
18. A magistrate, on application by an interested person
or on his or her own initiative, may order the revocation of
the deed of relationship.
19
s. 19 No. Relationships 2003
PART 3 THE RELATIONSHIPS REGISTER
Division 1 Keeping the Register
The Register
19. (1) The Registrar must maintain a register of deeds of
relationships to be known as the Relationships Register.
(2) The Register
(a) must contain the particulars of deeds of
relationships required under this Act to be
included in the Register; and
(b) may contain further information if the
Registrar considers its inclusion appropriate.
(3) The Register may be wholly or partly in the form
of a computer database, in documentary form, or in
another form the Registrar considers appropriate.
(4) The Registrar must maintain the indexes to the
Register that are necessary to make the information
contained in the Register reasonably accessible.
Division 2 Access to, and certification of, Register
entries
Access to Register
20. (1) The Registrar may, on any conditions the
Registrar considers appropriate
(a) allow access to the Register to a person or
organisation that has an adequate reason for
wanting access to the Register; or
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2003 Relationships No. s. 21
(b) provide information extracted from the
Register to a person or organisation that has
an adequate reason for wanting information
from the Register.
(2) In deciding whether an applicant has an
adequate reason for wanting access to the Register, or
information from the Register, the Registrar must have
regard to
(a) the nature of the applicant's interest; and
(b) the sensitivity of the information; and
(c) the use to be made of the information; and
(d) other relevant factors.
(3) In deciding the conditions on which access to the
Register, or information from the Register, is to be allowed
or provided under this section, the Registrar must, as far
as practicable, protect the persons to whom the entries in
the Register relate from unjustified intrusion on their
privacy.
Search of Register
21. (1) The Registrar may, on application, search the
Register for an entry about a deed of registration.
(2) The applicant must state the reason for the
applicant's interest in the subject matter of the search.
(3) The Registrar may reject the application if the
applicant does not have an adequate reason for wanting
the information to which the application relates.
(4) In deciding whether an applicant has an
adequate reason for wanting information, the Registrar
must have regard to
21
s. 22 No. Relationships 2003
(a) the relationship, if any, between the applicant
and the persons to whom the information
relates; and
(b) the age of the entry; and
(c) the contents of the entry; and
(d) any other relevant factors.
Protection of privacy
22. In providing information extracted from the Register,
the Registrar must, as far as practicable, protect the
persons to whom the entries in the Register relate from
unjustified intrusion on their privacy.
Issue of certificate
23. (1) On completing a search of the Register under
section 21(1), the Registrar may issue a certificate
(a) certifying particulars contained in an entry; or
(b) certifying that no relevant entry was located in
the Register.
(2) A certificate under subsection (1) is admissible in
legal proceedings as evidence of
(a) the entry to which the certificate relates; and
(b) the facts recorded in the entry.
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2003 Relationships No. s. 24
Access policies
24. (1) The Registrar must maintain a written statement
of the policies on which access to information contained in
the Register is to be given or denied under this Division.
(2) The Registrar must give a copy of the statement,
on request, to any person.
Review
25. A person who is dissatisfied with a decision of the
Registrar made in the performance or purported
performance of functions under this Part may apply to the
Magistrates Court (Administrative Appeals Division) for a
review of the decision.
False or misleading statements
26. A person must not, in giving any information under
this Act
(a) make a statement knowing it to be false or
misleading; or
(b) omit any matter from a statement knowing
that without the matter the statement is false
or misleading.
Penalty: Fine not exceeding 30 penalty units.
Unauthorised access to or interference with
Register
27. A person must not, without the authority of the
Registrar or other lawful authority
23
s. 28 No. Relationships 2003
(a) obtain access to the Register or information
contained in the Register; or
(b) make, alter or delete an entry in the Register;
or
(c) interfere with the Register in any other way.
Penalty: Fine not exceeding 100 penalty units or
imprisonment for a term not exceeding 3
months, or both.
Falsification of certificate
28. (1) A person must not forge the Registrar's signature.
Penalty: Fine not exceeding 100 penalty units or
imprisonment for a term not exceeding 3
months, or both.
(2) A person must not forge or falsify a certificate or
other document under this Act.
Penalty: Fine not exceeding 100 penalty units or
imprisonment for a term not exceeding 3
months, or both.
(3) The Registrar may impound
(a) a document which the Registrar has reason to
believe bears a forged impression of the
Registrar's signature; or
(b) a certificate or other document purporting to
be a certificate or other document under this
Act which the Registrar has reason to believe
has been forged or falsified; or
(c) a certificate issued under section 23(1) if the
entry in the Register about the event has been
24
2003 Relationships No. s. 29
revoked or corrected since the issue of the
certificate.
Immunity from liability
29. (1) No liability attaches to the Registrar for an honest
act or omission in the performance or purported
performance of functions under this Act.
(2) A liability that would, but for subsection (1),
attach to the Registrar attaches instead to the Crown.
Fees
30. (1) The regulations may prescribe fees or a basis for
calculating fees for
(a) lodgment of an application for registration of a
deed of relationship; or
(b) lodgment of an application for revocation of a
deed of relationship; or
(c) access to the Register; or
(d) a search of the Register; or
(e) the issue of a certificate following a search of
the Register; or
(f) other services provided by the Registrar.
(2) The regulations may allow for fees to be fixed by
negotiation between the Registrar and the person who
asks for the relevant services.
25
s. 31 No. Relationships 2003
PART 4 JURISDICTION
Limit of jurisdiction of Magistrates Court
31. Subject to section 9, the Magistrates Court does not
have jurisdiction under this Act to declare a title or right
or adjust an interest in property of a value exceeding the
amount prescribed under section 7 of the Magistrates
Court (Civil Division) Act 1992.
Stay and transfer of proceedings
32. (1) If proceedings instituted under this Act by or in
relation to a person are pending in a court and it appears
to the court that other proceedings under this Act
instituted by or in relation to the same person are pending
in another court, the court may
(a) stay the proceedings pending before it for any
period it considers fit; or
(b) dismiss the proceedings.
(2) If proceedings instituted under this Act are
pending in a court and it appears to the court that it is in
the interests of justice that the proceedings be dealt with
in another court, the court may transfer the proceedings to
the other court.
Transfer of proceedings from Magistrates Court
33. (1) The Magistrates Court is to transfer any
proceedings relating to an interest in property of a value
exceeding the amount prescribed under section 7 of the
Magistrates Court (Civil Division) Act 1992 to the Supreme
26
2003 Relationships No. s. 34
Court, unless the parties agree to the Magistrates Court
hearing and determining the proceedings.
(2) If proceedings referred to in subsection (1) are
before it, the Magistrates Court may transfer the
proceedings of its own motion, notwithstanding that the
parties are willing for the Magistrates Court to hear and
determine the proceedings.
(3) Before transferring proceedings, the Magistrates
Court may make any orders it considers necessary pending
the disposal of the proceedings by the Supreme Court.
(4) If proceedings are transferred to the Supreme
Court, the Supreme Court is to proceed as if the
proceedings had been originally instituted in that Court.
(5) Failure by the Magistrates Court to comply with
this section does not invalidate any order of that Court in
the proceedings.
Transfer of proceedings from Supreme Court
34. (1) The Supreme Court may transfer any proceedings
under this Act relating to an interest in property to the
Magistrates Court if
(a) the value of that interest is less than or equal
to the amount prescribed under section 7 of
the Magistrates Court (Civil Division) Act
1992; or
(b) the value of that interest is in excess of that
prescribed amount and the parties agree to the
Magistrates Court hearing and determining
the proceedings.
(2) The Supreme Court may transfer any
proceedings under this Act relating to maintenance.
27
s. 35 No. Relationships 2003
Courts aiding each other
35. Courts are to act severally in aid of, and be auxiliary
to, each other in all matters under this Act.
28
2003 Relationships No. s. 36
PART 5 PROCEEDINGS FOR FINANCIAL
ADJUSTMENT AND MAINTENANCE
Division 1 Preliminary
Application for adjustment or maintenance
36. (1) A partner may apply to a court for an order for the
adjustment of interests with respect to the property of
either or both of the partners or for the granting of
maintenance, or both.
(2) The application may be made whether or not any
other application for any remedy or relief is or may be
made under this Act or any other Act or law.
Prerequisites for making of order
37. (1) Subject to subsection (2), a court is not to make an
order unless satisfied that the partners referred to in an
application under section 36(1) have been in a personal
relationship for a continuous period of not less than 2
years.
(2) A court may make an order if satisfied that
(a) there is a child of the partners referred to in
the application; or
(b) the applicant
(i) has made substantial contributions of
the kind referred to in section 40(1) for
which the applicant would otherwise not
be adequately compensated if the order
were not made; or
29
s. 38 No. Relationships 2003
(ii) has the care and control of a child of the
respondent
and the failure to make the order would result
in serious injustice to the applicant.
(3) This section does not apply if a deed of
relationship has been registered in relation to the personal
relationship.
Time limit for making application
38. (1) If partners have ceased to be in a personal
relationship, an application to a court for an order under
section 36(1) is to be made before the expiration of the
period of 2 years after the day on which they ceased or last
ceased to be in the relationship.
(2) A court, at any time before or after the expiration
of the period referred to in subsection (1), may grant leave
to a partner to apply to the court for an order if greater
hardship would be caused to the applicant if that leave
were not granted than would be caused to the respondent
if that leave were granted.
Order to end financial relationship
39. In proceedings for an order, a court, so far as is
practicable, is to make an order that
(a) finally determines the financial relationship
between the partners; and
(b) avoids further proceedings between them.
30
2003 Relationships No. s. 40
Division 2 Adjustment of interest in property
Order for adjustment
40. (1) On an application by a partner for an order for the
adjustment of interests in respect of the property of either
or both the partners, a court may make any order it
considers just and equitable having regard to
(a) the financial and non-financial contributions
made directly or indirectly by or on behalf of
either or both of the partners to the
acquisition, conservation or improvement of
any of the property; and
(b) the financial resources of either or both of the
partners; and
(c) the contributions, including any contributions
made in the capacity of homemaker or parent,
made by a partner to the welfare of the other
partner or to the welfare of the family
constituted by the partners and one or more
of
(i) a child of the partners; or
(ii) a child accepted by either or both the
partners into the household of the
partners, whether or not the child is a
child of either of the partners; and
(d) the nature and duration of the relationship;
and
(e) any relevant matter mentioned in section 47.
(2) A court may make an order in respect of property
whether or not it has declared the title or rights of a
partner in respect of the property.
31
s. 41 No. Relationships 2003
Adjournment because of significant change in
circumstances
41. (1) Without limiting the power of a court to grant an
adjournment in relation to any proceedings before it, if, on
an application by a partner for an order under section 40,
the court is of the opinion that
(a) there is likely to be a significant change in the
financial circumstances of either or both of the
partners and that, having regard to when that
change is likely to take place, it is reasonable
to adjourn the proceedings; and
(b) an order that the court could make with
respect to the property of either or both of the
partners, if that significant change occurs, is
more likely to do justice between the partners
than an order that the court could make
immediately with respect to the property of
either or both of the partners
the court, if requested by either partner, may adjourn the
application for a specified period.
(2) Before adjourning an application under
subsection (1), the court may make any order it considers
appropriate with respect to the property of either or both
of the partners.
(3) A court, in forming an opinion for the purposes of
subsection (1), may have regard to
(a) any change in the financial circumstances of a
partner that may occur because of the vesting
in either or both of the partners, or the use or
application in or towards the purposes of
either or both of the partners, of a financial
resource of either or both of the partners; and
32
2003 Relationships No. s. 42
(b) any other circumstances the court considers
appropriate.
Adjournment because of proceedings in Family
Court
42. (1) Without limiting the power of a court to grant an
adjournment in relation to any proceedings before it, the
court may adjourn the hearing of the application for an
order under section 40 if, before the court has made a final
order to adjust interests with respect to the property of
either or both partners, proceedings in relation to the
property are commenced in the Family Court of Australia.
(2) If the hearing of an application for an order is
adjourned under subsection (1), either partner may apply
to the court for the hearing of the application to proceed.
Deferment of order
43. If a court is of the opinion that a partner, in respect of
the property of whom an order is made under section 40, is
likely to become entitled to property that may be applied
in satisfaction of the order, the court may defer the
operation of the order until the date or the occurrence of
an event specified in the order.
Death before order made
44. (1) If, before an application under section 40 is
determined, either party to the application dies, the
application may be continued by or against the legal
personal representative of the deceased party.
(2) A court may make an order in respect of property
if of the opinion that
33
s. 45 No. Relationships 2003
(a) it would have adjusted interests in respect of
property if the deceased party had not died;
and
(b) notwithstanding the death of the deceased
party, it is still appropriate to adjust those
interests.
(3) Any order may be enforced on behalf of, or
against, the estate of the deceased party.
Death after order made
45. If a party to a proceeding for an order under section 40
dies after the order is made in favour of, or against, that
party, the order may be enforced on behalf of, or against,
the estate of the deceased party.
Division 3 Maintenance
Right to maintenance
46. Subject to this Division
(a) a partner is not liable to maintain the other
partner; and
(b) a partner is not entitled to claim maintenance
from the other partner.
Order for maintenance
47. (1) On an application by a partner for an order for
maintenance, a court may make the order if satisfied that
the applicant is unable to support himself or herself
adequately because
34
2003 Relationships No. s. 47
(a) the partner's earning capacity has been
adversely affected by the circumstances of the
personal relationship; or
(b) of any other reason arising in whole or in part
from the circumstances of the personal
relationship.
(2) In determining whether to make the order and in
fixing any amount to be paid under the order, a court is to
have regard to the following:
(a) the income, property and financial resources of
each partner (including the rate of any
pension, allowance or benefit paid, payable or
entitled to be paid to either partner) and the
physical and mental capacity of each partner
for appropriate gainful employment;
(b) the financial needs and obligations of each
partner;
(c) the responsibilities of either partner to support
any other person;
(d) the terms of any order made or proposed to be
made under section 40;
(e) any payments provided for the maintenance of
a child in the care and control of either
partner;
(f) whether either partner has the care and
control of a child of the partner who is under
18;
(g) the age and state of health of each partner;
(h) the standard of living that is reasonable for
each partner in all the circumstances;
35
s. 47 No. Relationships 2003
(i) the extent to which the payment of
maintenance to the partner whose
maintenance is under consideration would
increase the earning capacity of the partner by
enabling the partner
(i) to undertake a course of education or
training; or
(ii) to establish a business; or
(iii) otherwise to obtain adequate income;
(j) the extent to which the partner whose
maintenance is under consideration has
contributed to the income, earning capacity,
property and financial resources of the other
partner;
(k) the length of the personal relationship;
(l) the extent to which the personal relationship
has affected the earning capacity of the
partner whose maintenance is under
consideration;
(m) any other fact or circumstances the court
considers relevant.
(3) In making an order for maintenance, a court is to
disregard any entitlement of the person whose
maintenance is under consideration to an income-tested
pension, allowance or benefit.
(4) If, before an application is determined, either
party to the application dies, the application abates.
36
2003 Relationships No. s. 48
Interim maintenance
48. If, on an application by a partner for an order for
maintenance, it appears to a court that the applicant is in
immediate need of financial assistance but it is not
practicable in the circumstances to determine immediately
if any order should be made, the court may order the
payment by the other partner, pending the disposal of the
application, of any periodic sum or other sums the court
considers reasonable.
Subsequent relationship or marriage
49. If partners cease to be in a personal relationship, an
application to a court for an order for maintenance may
not be made by a partner who, at the time at which the
application is made
(a) is in a personal relationship with another
person; or
(b) has married or remarried.
Cessation of order
50. (1) An order for maintenance ceases to have effect
(a) on the death of the partner in whose favour
the order was made; or
(b) on the death of the partner against whom the
order was made; or
(c) on the marriage or remarriage of the partner
in whose favour the order was made to another
person; or
37
s. 51 No. Relationships 2003
(d) on the registration of a deed of relationship
relating to the relationship of the partner in
whose favour the order was made to another
person.
(2) If a marriage, remarriage or registration of a
deed of relationship takes place, the partner is to notify
the partner against whom the order was made of the date
of the marriage, remarriage or registration as soon as
practicable.
(3) Any money paid under an order for periodic
maintenance in respect of a period occurring after the
marriage, remarriage or registration of a deed of
relationship takes place may be recovered as a debt in a
court of competent jurisdiction by the partner who made
the payment.
(4) If a notification under subsection (2) is not
provided or reasonable steps are not taken to provide the
notification, interest is payable on any money recovered
under subsection (3) with effect from the date of the
marriage, remarriage or registration of the deed of
relationship.
(5) The rate of interest payable is the rate applicable
in the relevant court.
Recovery of arrears
51. The provisions of this Division do not affect the
recovery of any arrears due under an order for
maintenance when the order ceases to have effect.
38
2003 Relationships No. s. 52
Variation of order for periodic maintenance
52. (1) On an application by a partner in respect of whom
an order has been made for periodic maintenance, a court
may
(a) subject to subsection (2), discharge the order;
or
(b) suspend the operation of the order wholly or in
part until
(i) a further order; or
(ii) a fixed time; or
(iii) the happening of a future event; or
(c) revive wholly or in part the operation of an
order suspended under paragraph (b); or
(d) subject to subsection (2), vary the terms of the
order.
(2) A court is not to make an order discharging an
order or increasing or decreasing an amount payable
under an order unless satisfied that it is justifiable to do so
because, since the order was made or last varied
(a) the circumstances of the partner in whose
favour the order was made have changed; or
(b) the circumstances of the partner against
whom the order was made have changed; or
(c) the cost of living has changed.
(3) In satisfying itself for the purposes of
subsection (2)(c), a court is to have regard to any changes
occurring during the relevant period in
39
s. 53 No. Relationships 2003
(a) the Consumer Price Index (All Groups Index)
issued by the Australian Statistician; or
(b) a group of prescribed numbers or prescribed
amounts relating to the price of goods and
services issued by the Australian Statistician,
other than those set out in the Index referred
to in paragraph (a).
(4) A court, in considering the variation of an order,
is not to have regard to a change in the cost of living
unless at least 12 months have elapsed since the order was
made or last varied.
(5) An order increasing or decreasing the amount of
a periodic sum payable under an order may be expressed
to be retrospective to any date the court thinks fit.
(6) For the purposes of this section, a court is to
have regard to the provisions of sections 46 and 47.
Other maintenance orders not to be varied
53. Subject to section 57, an order for maintenance, other
than for periodic maintenance, is not to be varied.
Division 4 General
Orders of court
54. (1) Without derogating from any other power of a
court under this or any other Act or law, a court, in
exercising its powers under this Part, may do any one or
more of the following:
(a) order the transfer of property;
40
2003 Relationships No. s. 54
(b) order the sale of property and the distribution
of the proceeds of sale in any proportions it
thinks fit;
(c) order that any necessary deed or instrument
be executed and that any documents of title be
produced or any other things be done as are
necessary to enable an order to be carried out
effectively or to provide security for the
performance of an order;
(d) order payment of a lump sum, whether in one
amount or by instalments;
(e) order payment of a weekly, fortnightly,
monthly, yearly or other periodic sum;
(f) order that payment of any sum ordered to be
paid be wholly or partly secured in any
manner the court directs;
(g) appoint or remove trustees;
(h) make an order or grant an injunction for either
or both of the following purposes:
(i) for the protection of, or otherwise
relating to, the property or financial
resources of either or both of the parties
to an application;
(ii) to aid enforcement of any other order
made in respect of an application;
(i) impose terms and conditions;
(j) make an order by consent;
(k) make an order in the absence of a party;
(l) make any other order or grant any other
injunction (whether or not of the same nature
41
s. 55 No. Relationships 2003
as those mentioned in this subsection) that it
thinks is necessary to do justice.
(2) A court, in relation to an application, may make
any order or grant any remedy or relief
(a) that it is empowered to make or grant under
this or any other Act or law; and
(b) under this Part, in addition to or in
conjunction with making any other order or
granting any other remedy or relief that it is
so empowered to make or grant.
Execution of instruments
55. (1) If a person refuses or fails to comply with a
direction in an order to execute a deed or instrument, or a
court thinks it necessary to exercise the powers conferred
on it under this subsection, the court may appoint an
officer of the court or other person
(a) to execute a deed or instrument in the name of
the person to whom the direction was given;
and
(b) to do anything necessary to give validity and
operation to the deed or instrument.
(2) The execution of the deed or instrument by the
person appointed is as valid as if it were executed by the
person directed by the order to execute it.
(3) A court may make any order it thinks just
relating to the payment of the costs and expenses of, and
incidental to, the preparation of the deed or instrument
and its execution.
42
2003 Relationships No. s. 56
Ex parte orders
56. (1) In the case of urgency and on application made to
it, a court may make or grant the following:
(a) an ex parte order under section 48;
(b) an ex parte order or ex parte injunction for
either or both of the purposes specified in
section 54(1)(h).
(2) An application under this section is to be made
(a) orally or in writing; or
(b) in any form the court considers appropriate.
(3) If an application is not made in writing, the court
is not to make an order or grant an injunction under
subsection (1) unless, because of the extreme urgency of
the case, it considers that it is necessary to do so.
(4) The court may give any directions with respect to
the filing of a written application, the service of the
application and the further hearing of the application it
thinks fit.
(5) An order made or injunction granted under
subsection (1) operates or applies until a specified time or
the further order of the court as specified in the order.
(6) If a court makes an order or grants an injunction
under subsection (1), it may give directions with respect
to
(a) the service of the order or injunction and any
other documents it thinks fit; and
(b) the hearing of an application for a further
order.
43
s. 57 No. Relationships 2003
Variation and setting aside of orders
57. If, on the application of a person in respect of whom an
order referred to in section 40 or 47 is made, a court is
satisfied that
(a) there has been a miscarriage of justice because
of fraud, duress, suppression of evidence, the
giving of false evidence or any other
circumstances; or
(b) it is impracticable for the order or part of the
order to be carried out; or
(c) a person failed to carry out an obligation
imposed on the person by the order
the court may vary or set aside the order and make
another order in substitution for the order set aside.
Transactions to defeat claims
58. (1) If a court is satisfied that an existing or
anticipated order in a proceeding under this Act is likely to
be defeated by the making of a document or disposition by
a party to the proceeding, the court may set aside or
restrain the making of the document or disposition.
(2) If a court is satisfied that an existing or
anticipated order in a proceeding under this Act was
defeated by the making of a document or disposition by a
party to the proceeding, the court may order that
(a) any property dealt with by the document or
disposition be applied towards, or charged
with, payment of
(i) an amount payable under an order
adjusting interests in the property of one
44
2003 Relationships No. s. 59
or more of the parties to the proceeding;
or
(ii) costs; or
(b) the proceeds of a sale be paid into court to
satisfy its order.
(3) A court may order a party or a person acting in
collusion with a party to pay the costs of any other party,
or of a genuine purchaser or other interested person, of
and incidental to any document or disposition or the
setting aside or restraining of the document or disposition.
(4) For the purpose of this section
(a) something is made by a person if the thing is
made by or on behalf of, or by direction or in
the interests of, the person; and
(b) it does not matter that the document or
disposition is intended to defeat the order
concerned.
Interests of other parties
59. In exercising its powers under this Part, a court is to
(a) have regard to the interests of a genuine
purchaser or other person interested; and
(b) make an order that is proper for the protection
of such a purchaser or person.
45
s. 60 No. Relationships 2003
PART 6 AGREEMENTS
Entering into agreements
60. Notwithstanding any rule of public policy to the
contrary, two adult persons who are not married to each
other may enter into a personal relationship agreement or
separation agreement.
Agreements subject to law of contract
61. A personal relationship agreement or separation
agreement is subject to, and enforceable in accordance
with, the law of contract.
Effect of agreements in certain proceedings
62. (1) If, on an application by a partner for an order, a
court is satisfied that
(a) there is a personal relationship agreement or
separation agreement between the partners;
and
(b) the agreement is in writing; and
(c) the agreement is signed by the partner against
whom it is sought to be enforced; and
(d) each party to the relationship was, before the
time at which the agreement was signed by
him or her, given by a solicitor of the Supreme
Court of Tasmania a certificate in a form
approved by the Minister which states that,
before that time, the solicitor provided legal
advice to that party, independently of the
46
2003 Relationships No. s. 62
other party to the relationship, as to the
following matters:
(i) the effect of the agreement on the rights
of the parties to apply for an order under
Part 5;
(ii) the advantages and disadvantages, at
the time that the advice was provided, to
the party of making the agreement; and
(e) the certificates referred to in paragraph (d) are
endorsed on or annexed to or otherwise
accompany the agreement
the court is not to make an order that is inconsistent with
the terms of the agreement.
(2) If, on an application by a partner for an order, a
court is satisfied that there is a personal relationship
agreement or separation agreement between the partners
but it is not satisfied as to any of the matters referred to in
subsection (1)(b), (c) or (d) the court may
(a) make any order it could have made if there
were no personal relationship agreement or
separation agreement between the partners;
and
(b) have regard to the terms of the personal
relationship agreement or separation
agreement.
(3) A court may make an order referred to in
subsection (2) notwithstanding that the personal
relationship agreement or separation agreement purports
to exclude the jurisdiction of the court to make that order.
47
s. 63 No. Relationships 2003
Variation of terms of cohabitation and separation
agreements
63. (1) On an application by a partner for an order, a
court may vary or set aside any provision of a personal
relationship agreement or separation agreement that
satisfies the matters referred to in section 62(1)(b), (c), (d)
and (e) if, in the opinion of the court, the circumstances of
the partners have so changed since the agreement was
entered into that it would lead to serious injustice if the
provision were enforced, whether on the application for the
order or on any other application for any remedy or relief
under any other Act or law.
(2) A court may vary or set aside any provision of a
personal relationship agreement or separation
agreement
(a) if of the opinion that the agreement was
entered into under duress or by fraud; or
(b) on any other ground that would allow a
contract to be set aside.
(3) A court may vary or set aside any provision of a
personal relationship agreement or separation agreement
notwithstanding any provision of the agreement to the
contrary.
Revocation of agreements
64. On an application by a partner for an order, a court is
not required to give effect to the terms of any personal
relationship agreement or separation agreement entered
into by that partner if the court is of the opinion that
(a) the partners have, by their words or conduct,
revoked or consented to the revocation of the
agreement; or
48
2003 Relationships No. s. 65
(b) the agreement has otherwise ceased to have
effect.
Effect of death of partner
65. (1) The provisions of a personal relationship
agreement or separation agreement requiring a partner to
pay periodic maintenance to the other partner are
(a) on the death of the first-mentioned partner,
unenforceable against his or her estate unless
the agreement provides otherwise; and
(b) on the death of the second-mentioned partner,
unenforceable by his or her estate.
(2) Subsection (1) does not affect the recovery of
arrears of periodic maintenance due and payable under a
personal relationship agreement or separation agreement
at the date of death of the partner.
(3) Unless a personal relationship agreement or
separation agreement otherwise provides, the provisions of
the agreement entered into by partners relating to
property and lump sum payments are, on the death of one
of the partners, enforceable on behalf of, or against, the
estate of the deceased partner.
49
s. 66 No. Relationships 2003
PART 7 MISCELLANEOUS
Declaration of existence of personal relationship
66. (1) A person who alleges that a personal relationship
exists or existed between the person and another person or
between 2 persons may apply to the Supreme Court for a
declaration as to the existence of a personal relationship
between the persons.
(2) If it is proved to the satisfaction of the Supreme
Court that a personal relationship exists or existed, the
Supreme Court may make a declaration, that has effect as
a judgment of the Court, that persons named in the
declaration have or had a personal relationship, whether
or not any of those persons are alive.
(3) If the Supreme Court makes a declaration, it is
to state in its declaration either or both of the following:
(a) that the personal relationship existed as at a
date specified in the declaration;
(b) that the personal relationship existed between
the dates specified in the declaration.
(4) While a declaration remains in force, the persons
named in the declaration are presumed conclusively for all
purposes to have had a personal relationship as at the
date, or between the dates, specified in the declaration.
(5) The Supreme Court may make an order
annulling a declaration on the application of any person
who applied or could have applied for the making of a
declaration, or who is affected by a declaration, if it
appears to the Supreme Court that new facts or
circumstances have arisen that were not previously
disclosed to it and could not by the exercise of reasonable
diligence have previously been disclosed to it.
50
2003 Relationships No. s. 67
(6) An order annulling a declaration does not affect
anything done in reliance on the declaration before the
making of the order.
(7) If any person whose interest, in the opinion of
the Supreme Court, may be affected by a declaration
under subsection (2) or an order under subsection (5) is not
present or represented and has not been given an
opportunity to be present or represented at the hearing of
the application, the Supreme Court may adjourn the
hearing so that the person is given an opportunity to be
present or represented.
(8) The Supreme Court, in making an order under
subsection (5), may make any ancillary orders necessary to
place as far as practicable any person affected by the order
in the same position as that person would have been in if a
declaration under subsection (2) had not been made.
Enforcement of orders for payment
67. (1) A prescribed order for the payment of money made
by the Supreme Court is enforceable in the Magistrates
Court as if it were a judgment of the Magistrates Court
under the Magistrates Court (Civil Division) Act 1992.
(2) An order for the payment of money made by the
Magistrates Court is enforceable in that court as if it were
a judgment of that court under the Magistrates Court
(Civil Division) Act 1992.
Costs
68. A court may make any order for costs it considers
appropriate.
51
s. 69 No. Relationships 2003
Enforcement of other orders
69. (1) If a court is satisfied that a person has knowingly
and without reasonable cause contravened or failed to
comply with an order or injunction under this Act, other
than an order for the payment of money, the court may
(a) order the person to deliver up to the court any
documents the court thinks fit; and
(b) make any other orders the court considers
necessary to enforce compliance with the order
or injunction.
(2) This section does not affect the power of a court
to punish a person for contempt of court.
Rules of court
70. For the purpose of this Act, rules of court may be
made under the Supreme Court Civil Procedure Act 1932
and the Magistrates Court (Civil Division) Act 1992.
Regulations
71. (1) The Governor may make regulations for the
purposes of this Act.
(2) Regulations may be made so as to apply
differently according to matters, limitations or restrictions,
whether as to time, circumstance or otherwise, specified in
the regulations.
(3) The regulations may
(a) provide that a contravention of, or a failure to
comply with, any of the regulations is an
offence; and
52
2003 Relationships No. s. 72
(b) in respect of such an offence, provide for the
imposition of a fine not exceeding 50 penalty
units and, in the case of a continuing offence, a
further fine not exceeding 20 penalty units for
each day during which the offence continues.
(4) The regulations may authorise any matter to be
from time to time determined, applied or regulated by any
person or body specified in the regulations.
(5) The regulations may contain provisions of a
savings or transitional nature consequent on the
enactment of this Act.
(6) Regulations under subsection (5) may take effect
on the day on which this Act commences or a later day as
specified in the regulations, whether the day so specified is
before, on or after the day on which the regulations are
made.
Administration of Act
72. Until provision is made in relation to this Act by order
under section 4 of the Administrative Arrangements Act
1990
(a) the administration of this Act is assigned to
the Minister for Justice and Industrial
Relations; and
(b) the department responsible to the Minister for
Justice and Industrial Relations in relation to
the administration of this Act is the
Department of Justice and Industrial
Relations.
53
s. 73 No. Relationships 2003
Savings and transitional
73. (1) An order
(a) continued under the De Facto Relationship Act
1999 and in force immediately before the
commencement of this Act; or
(b) made under the De Facto Relationship Act
1999 and in force immediately before the
commencement of this Act
continues with any necessary modifications or adaptations
as if it were an order made under this Act and is to be
taken for all purposes as if it had been made under this
Act.
(2) An application under the De Facto Relationship
Act 1999 is taken to be an application under this Act with
any necessary modifications or adaptations, and anything
done in respect of that application under the De Facto
Relationship Act 1999 is taken to have been done under
this Act.
(3) Any right or entitlement that a de facto partner,
within the meaning of the De Facto Relationship Act 1999,
had or was entitled to under that Act is taken to be a right
or entitlement which that person has or is entitled to
under this Act.
De Facto Relationship Act 1999 repealed
74. The De Facto Relationship Act 1999 is repealed.
54
2003 Relationships No. s. 75
De Facto Relationship Regulations 2000 rescinded
75. The De Facto Relationship Regulations 2000 are
rescinded.
Government Printer, Tasmania 55