Property (Relationships) Amendment Act 2001

Property (Relationships) Amendment Act 2001

Public Act2001 No 5
Date of assent3 April 2001

Note

This Act is administered in the Ministry of Justice.


Contents

When persons can contract out

Subject matter of agreement

Model forms of agreement

Procedural requirements

Agreements by minors

Court may set agreement aside

Miscellaneous provisions

Agreements made before 1 August 2001

Agreements made between 1 August 2001 and 31 January 2002, where marriage or de facto relationship ends before 1 February 2002

Application of this Part

Death of spouse or de facto partner

Insolvent deceased spouse or de facto partner

Proceedings commenced while both spouses or de facto partners alive

Surviving spouse or de facto partner may choose between division under this Act and taking under will or intestacy

Distribution of estates

Effect of choice of division under this Act (option A)

Sections modifying or affecting earlier sections in proceedings commenced after death of spouse or de facto partner

Effect of choice of will or intestacy (option B)

Transitional provisions

Savings


The Parliament of New Zealand enacts as follows:

1 Title
  • (1) This Act is the Property (Relationships) Amendment Act 2001.

    (2) In this Act, the Act that was previously called the Matrimonial Property Act 1976 is called the principal Act.

2 Commencement
  • Except as provided in sections 21(2), 64(5), and 64(7), this Act comes into force on 1 February 2002.

3 Purposes
  • The purposes of this Act are—

    • (b) to amend the principal Act so that it applies to the division of the property of married couples when 1 of them dies; and

    • (c) to make certain other amendments to the principal Act; and

    • (d) to extend the property division regime in the principal Act so that it applies to the division of the relationship property of couples who have lived in a de facto relationship, when they separate or 1 of them dies.

4 Title repealed
  • The Title of the principal Act is repealed.

5 Name of principal Act changed
  • (1) After the commencement of this section, the principal Act is called the Property (Relationships) Act 1976.

    (2) The Short Title of the principal Act is consequentially amended by omitting the words Matrimonial Property, and substituting the words Property (Relationships).

6 New Part 1 inserted
  • The principal Act is amended by inserting, after section 1, the following Part:

    Part 1
    Outline of this Act

    1A Purpose of this Part
    • This Part is intended—

      • (a) to give a general indication of what this Act is about:

      • (b) to indicate how this Act is arranged:

      • (c) to assist readers to identify the provisions that are relevant to them.

    1B Status of this Part
    • This Part is intended only as a guide to the general scheme and effect of this Act.

    1C What this Act is about
    • (1) This Act is mainly about how the property of married couples and couples who have lived in a de facto relationship is to be divided up when they separate or 1 of them dies.

      (2) This Act applies differently depending on the length of the marriage between the husband and wife or the de facto relationship between the de facto partners:

      • (a) in the case of marriages, special rules apply to marriages of less than 3 years:

      • (b) in the case of de facto relationships, this Act usually applies only when the de facto partners have lived together for at least 3 years, but it may apply to shorter de facto relationships in certain circumstances.

      (3) In general, the couple's property is to be divided equally between the couple.

    1D How this Act is arranged
    • (1) This Act is arranged in Parts, as follows:

      • (a) Part 1—outline of this Act:

      • (b) Part 2—preliminary provisions:

      • (c) Part 3—application of this Act:

      • (d) Part 4—division of relationship property:

      • (e) Part 5—relationship property and creditors:

      • (f) Part 6—contracting out:

      • (g) Part 7—proceedings under this Act:

      • (h) Part 8—division of property where 1 spouse or de facto partner dies:

      • (i) Part 9—transitional provisions and savings.

      (2) Sections 1E to 1L summarise what each Part (other than this Part) contains.

    1E Part 2 (preliminary provisions)
    • Part 2 contains provisions dealing with interpretation and with the application of this Act. Among other things, it—

      • (a) sets out what various terms used in this Act mean:

      • (b) provides that this Act does not apply to Maori land:

      • (c) sets out how this Act applies to property located in New Zealand or overseas.

    1F Part 3 (application of this Act)
    • (1) Part 3 identifies—

      • (a) which provisions of this Act apply with respect to the division of relationship property while both spouses or de facto partners are alive; and

      • (b) which provisions of this Act apply with respect to the division of relationship property when 1 spouse or de facto partner dies.

      (2) Part 3 also—

      • (a) sets out how this Act applies in various other circumstances (such as when 1 of the spouses or de facto partners is declared bankrupt):

      • (b) sets out what happens if proceedings are commenced while both spouses or de facto partners are alive, and 1 or both of them die before the proceedings are completed.

    1G Part 4 (division of relationship property)
    • Part 4 sets out how the property of a husband and wife or de facto partners is to be divided when they separate and cannot agree on the matter. It deals with matters like—

      • (a) on what basis is the relationship property to be divided?

      • (b) what happens if the spouses or de facto partners have been living together for less than 3 years?

      • (c) can the Court do anything to redress any disparities between the income and living standards of the spouses or de facto partners after the marriage or de facto relationship ends?

      • (d) how are the different contributions of the spouses to the marriage, or of the de facto partners to the de facto relationship, assessed?

    1H Part 5 (relationship property and creditors)
    • Part 5 sets out how this Act affects the secured and unsecured creditors of the spouses or de facto partners. It deals with matters like—

      • (a) what rights do secured and unsecured creditors have against the spouses or de facto partners, and against property owned by the spouses or de facto partners?

      • (b) to what extent is the share of 1 spouse or de facto partner reduced by the fact that the other spouse or de facto partner has unsecured personal debts?

    1I Part 6 (contracting out)
    • Part 6 deals with the rights of spouses or de facto partners to decide themselves how their property is to be divided. It deals with matters like—

      • (a) does a property agreement between the spouses or de facto partners have to be in writing?

      • (b) do the spouses or de facto partners need legal advice about entering into a property agreement?

      • (c) can a Court overrule a property agreement?

    1J Part 7 (proceedings under this Act)
    • (1) Part 7—

      • (a) deals with the various powers that a Court can exercise in deciding how property is to be divided between spouses or de facto partners; and

      • (b) sets out the procedures that apply to Court proceedings under this Act; and

      • (c) deals with some general issues.

      (2) Part 7 deals with matters like—

      • (a) what Court do applications have to be made to?

      • (b) who can apply for a Court order dividing a couple's property?

      • (c) is there any time limit on applying for a Court order?

      • (d) can a Court order be obtained stopping a person from disposing of property?

      • (e) what happens if the spouses or de facto partners attempt to defeat their creditors by disposing of property?

    1K Part 8 (division of property where 1 spouse or de facto partner dies)
    • Part 8 sets out how the property of a husband and wife or de facto partners is to be divided when 1 of them dies. It deals with matters like—

      • (a) what if the deceased spouse or de facto partner has left a will?

      • (b) can the estate of the deceased spouse or de facto partner make a claim against the spouse or de facto partner who is still alive?

      • (c) what is the effect on rights under other legislation that relates to claims to a deceased person's property (such as the Law Reform (Testamentary Promises) Act 1949 and the Family Protection Act 1955)?

    1L Part 9 (transitional provisions and savings)
    • Part 9 contains—

      • (a) transitional provisions, dealing with matters like—

        • (i) how this Act applies to marriages that took place before it came into force; and

        • (ii) the effect of this Act on proceedings commenced under legislation in force before this Act came into force; and

      • (b) savings provisions, dealing with matters such as the effect of this Act on matrimonial settlements made before this Act came into force.

7 New Part heading, sections, and headings inserted
  • The principal Act is amended by inserting, immediately before section 2, the following Part heading, sections, and headings:

    Part 2
    Preliminary provisions

    Purpose and principles

    1M Purpose of this Act
    • The purpose of this Act is—

      • (a) to reform the law relating to the property of married couples and of couples who live together in a de facto relationship:

      • (b) to recognise the equal contribution of husband and wife to the marriage partnership, and of de facto partners to the de facto relationship partnership:

      • (c) to provide for a just division of the relationship property between the spouses or de facto partners when their relationship ends by separation or death, and in certain other circumstances, while taking account of the interests of any children of the marriage or children of the de facto relationship.

    1N Principles
    • The following principles are to guide the achievement of the purpose of this Act:

      • (a) the principle that men and women have equal status, and their equality should be maintained and enhanced:

      • (b) the principle that all forms of contribution to the marriage partnership, or the de facto relationship partnership, are treated as equal:

      • (c) the principle that a just division of relationship property has regard to the economic advantages or disadvantages to the spouses or de facto partners arising from their marriage or de facto relationship or from the ending of their marriage or de facto relationship:

      • (d) the principle that questions arising under this Act about relationship property should be resolved as inexpensively, simply, and speedily as is consistent with justice..

    Interpretation.

8 New sections 2 to 2H and headings substituted
  • The principal Act is amended by repealing section 2, and substituting the following sections and headings:

    2 Interpretation
    • In this Act, unless the context otherwise requires,—

      administration has the meaning given to it by section 2 of the Administration Act 1969

      child of the de facto relationship

      • (a) means any child of both de facto partners; and

      • (b) includes any other child (whether or not a child of either de facto partner) who was a member of the family of the de facto partners—

        • (i) at the time when they ceased to live together; or

        • (ii) at the time immediately before an application under this Act, if at that time they had not ceased to live together; or

        • (iii) at the date of the death of 1 of the de facto partners

      child of the marriage

      • (a) means any child of both spouses; and

      • (b) includes any other child (whether or not a child of either spouse) who was a member of the family of the spouses—

        • (i) at the time when they ceased to live together; or

        • (ii) at the time immediately before an application under this Act, if at that time they had not ceased to live together; or

        • (iii) at the date of the death of 1 of the spouses; and

      • (c) if the marriage was immediately preceded by a de facto relationship between the spouses, includes any child of the de facto relationship

      Commonwealth country

      • (a) means a country that is an independent sovereign member of the Commonwealth; and

      • (b) includes every territory for whose international relations the Government of such a country is responsible; and

      • (c) also includes the Republic of Ireland as if it were an independent sovereign member of the Commonwealth

      contribution has the meaning given to it by section 18

      Court means—

      • (a) a Family Court; or

      • (b) if another court has jurisdiction in the proceedings, that court

      de facto partner has the meaning given to it by section 2C; and includes a former de facto partner

      de facto relationship has the meaning given to it by section 2D

      distribution, in relation to an estate, has the meaning given to it by section 46 of the Administration Act 1969

      dwellinghouse includes a flat or town house, whether or not occupied under a licence to occupy within the meaning of section 121A of the Land Transfer Act 1952

      family chattels

      • (a) means chattels of the following kind that either or both of the spouses or de facto partners own:

        • (i) household furniture:

        • (ii) household appliances, effects, or equipment:

        • (iii) articles of household or family use or amenity or of household ornament, including tools, garden effects and equipment:

        • (iv) motor vehicles, caravans, trailers, or boats, used wholly or principally, in each case, for family purposes:

        • (v) accessories of a chattel to which subparagraph (iv) applies:

        • (vi) household pets; and

      • (b) includes any of the chattels mentioned in paragraph (a) that are in the possession of either or both spouses or de facto partners under a hire purchase or conditional sale agreement or an agreement for lease or hire; but

      • (c) does not include—

        • (i) chattels used wholly or principally for business purposes:

        • (ii) money or securities for money:

        • (iii) heirlooms:

        • (iv) taonga

      family home

      • (a) means the dwellinghouse that either or both of the spouses or de facto partners use habitually or from time to time as the only or principal family residence, together with any land, buildings, or improvements appurtenant to that dwellinghouse and used wholly or principally for the purposes of the household; and

      • (b) includes a joint family home

      homestead

      • (a) means a family home where the dwellinghouse that comprises the family residence is situated on an unsubdivided part of land that is not used wholly or principally for the purposes of the household; but

      • (b) does not include a family home that is occupied—

        • (i) pursuant to a licence to occupy within the meaning of section 121A of the Land Transfer Act 1952; or

        • (ii) because of the ownership of a specified share of any estate or interest in the land on which the dwellinghouse that comprises the family residence is situated and by reason of reciprocal agreements with the owners of the other shares; or

        • (iii) in the case of a flat or town house that is part of a block of flats or town houses or is 1 of a number of flats or town houses situated on the same piece of land, under a lease or other arrangement that entitles the occupants of the flat or town house to exclusive possession of it

      joint family home means land settled as a joint family home under the Joint Family Homes Act 1964

      lawyer,—

      • (a) other than in Part 6 and section 65, means a barrister or solicitor, as those terms are defined in section 2 of the Law Practitioners Act 1982:

      • (b) in Part 6 and section 65,—

        • (i) in the case of a document signed in New Zealand, means a barrister or solicitor, as those terms are defined in section 2 of the Law Practitioners Act 1982:

        • (ii) in the case of a document signed in a Commonwealth country outside New Zealand, means a barrister or solicitor (as those terms are so defined) who holds a current practising certificate, or a solicitor entitled to practise in that country, or a notary public:

        • (iii) in the case of a document signed in a country that is not a Commonwealth country, means a barrister or solicitor (as those terms are so defined) who holds a current practising certificate, or a notary public

      life insurance policy

      • (a) means a policy of assurance taken out by 1 spouse or de facto partner (party A) on his or her own life or the life of his or her spouse or de facto partner (party B), regardless of whether—

        • (i) the policy is for the benefit of party A or party B:

        • (ii) the proceeds are payable on the death of the assured or on the occurrence of a specified event or otherwise; and

      • (b) includes the proceeds of such a policy of assurance payable to a surviving spouse or de facto partner or to the personal representative of the deceased spouse or de facto partner; but

      • (c) does not include either of the following kinds of policy, or the proceeds of a policy of either of those kinds:

        • (i) a policy that was fully paid up at the time the marriage or de facto relationship began:

        • (ii) a policy where a third person is beneficially entitled to the proceeds of the policy

      marriage has the meaning given to it by section 2A

      option A and option B mean the options set out in section 61

      owner, in respect of any property, means the person who, apart from this Act, is the beneficial owner of the property under any enactment or rule of common law or equity

      personal debt has the meaning given to it by section 20

      proceedings means proceedings under this Act, except in sections 51, 96, and 97(3)

      property includes—

      • (a) real property:

      • (b) personal property:

      • (c) any estate or interest in any real property or personal property:

      • (d) any debt or any thing in action:

      • (e) any other right or interest

      protected interest has the meaning given to it by section 20B

      Registrar means a Registrar of the Court; and includes a Deputy Registrar of the Court

      relationship debt has the meaning given to it by section 20

      relationship of short duration has the meaning given to it by section 2E

      relationship property has the meaning given to it by section 8

      separate property has the meaning given to it by section 9

      small estate means an estate of a deceased person that can lawfully be distributed without the need for administration of the estate to be obtained

      superannuation scheme entitlement

      • (a) means any pension, benefit, or right to which either spouse or de facto partner is entitled or may become entitled under any superannuation scheme, if the entitlement is derived, wholly or in part, from contributions made to the scheme after the marriage or de facto relationship began or from employment or office held since the marriage or de facto relationship began; and

      • (b) if Part 8 applies, includes any such entitlement payable to a surviving spouse or de facto partner on the death of the deceased spouse or de facto partner

      voluntary agreement means a written agreement—

      • (a) made between spouses or de facto partners who are parties to proceedings; and

      • (b) providing for 1 spouse or de facto partner to pay sums of money to the other spouse or de facto partner for the maintenance of—

        • (i) the other spouse or de facto partner:

        • (ii) a child of the marriage or child of the de facto relationship.

    2A Meaning of marriage
    • (1) In this Act, marriage includes a marriage that—

      • (a) is void; or

      • (b) is ended while both spouses are alive by a legal process that occurs within or outside New Zealand; or

      • (c) is ended by the death of 1 of the spouses, whether within or outside New Zealand;—

      and husband, spouse, and wife each has a corresponding meaning.

      (2) For the purposes of this Act, the marriage of a husband and wife ends if—

      • (a) they cease to live together as husband and wife; or

      • (b) their marriage is dissolved; or

      • (c) 1 of them dies.

    2B Marriage includes immediately preceding de facto relationship
    • For the purposes of this Act, if a marriage was immediately preceded by a de facto relationship between the husband (A) and the wife (B), the de facto relationship must be treated as if it were part of the marriage.

      Example of marriage including immediately preceding de facto relationship—

      If the de facto relationship of A and B lasts 2 years, and their marriage lasts 2 years, their marriage must be treated as if it—

      • (a) began 4 years ago; and

      • (b) lasted 4 years.

    2C Meaning of de facto partner
    • For the purposes of this Act, a person is another person's de facto partner if they have a de facto relationship with each other.

    2D Meaning of de facto relationship
    • (1) For the purposes of this Act, a de facto relationship is a relationship between 2 persons (whether a man and a woman, or a man and a man, or a woman and a woman)—

      • (a) who are both aged 18 years or older; and

      • (b) who live together as a couple; and

      • (c) who are not married to one another.

      (2) In determining whether 2 persons live together as a couple, all the circumstances of the relationship are to be taken into account, including any of the following matters that are 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.

      (3) In determining whether 2 persons live together as a couple,—

      • (a) no finding in respect of any of the matters stated in subsection (2), or in respect of any combination of them, is to be regarded as necessary; and

      • (b) a Court 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.

      (4) For the purposes of this Act, a de facto relationship ends if—

      • (a) the de facto partners cease to live together as a couple; or

      • (b) 1 of the de facto partners dies.

      Compare: Property (Relationships) Act 1984 (New South Wales) s 4(1)-(3)

    2E Meaning of relationship of short duration
    • (1) In this Act, relationship of short duration means,—

      • (a) in relation to a marriage, a marriage in which the husband and wife have lived together as husband and wife—

        • (i) for a period of less than 3 years; or

        • (ii) for a period of 3 years or longer, if the Court, having regard to all the circumstances of the marriage, considers it just to treat the marriage as a relationship of short duration:

      • (b) in relation to a de facto relationship, a de facto relationship in which the de facto partners have lived together as de facto partners—

        • (i) for a period of less than 3 years; or

        • (ii) for a period of 3 years or longer, if the Court, having regard to all the circumstances of the de facto relationship, considers it just to treat the de facto relationship as a relationship of short duration.

      (2) For the purposes of paragraphs (a)(i) and (b)(i) of subsection (1), in computing the period for which the parties have lived together as husband and wife or as de facto partners, the Court may exclude a period of resumed cohabitation that has the motive of reconciliation and is no longer than 3 months.

    Dates at which shares and values determined

    2F Date at which shares to be determined
    • (1) For the purposes of this Act, the share of a spouse or de facto partner in the relationship property is to be determined as at the following date:

      • (a) if the spouses' marriage, or the de facto partners' de facto relationship, has not ended, the date of the application to the Court:

      • (b) if the spouses' marriage, or the de facto partners' de facto relationship, has ended (other than by the death of 1 of the spouses or de facto partners), the date on which their marriage or their de facto relationship ended.

      (2) In proceedings commenced after the death of 1 of the spouses or de facto partners, this section is modified by section 79.

      (3) This section is subject to Part 6.

    2G Date at which value of property to be determined
    • (1) For the purposes of this Act, the value of any property to which an application under this Act relates is to be determined as at the date of the hearing of that application by the Court of first instance.

      (2) However, the Court of first instance or, on an appeal under section 39, the High Court or the Court of Appeal or the Privy Council may, in its discretion, decide that the value of the property is to be determined as at another date.

      (3) This section is subject to Part 6.

    Determination of use to which property put

    2H Determination of use to which property put
    • (1) This section applies where the classification of any property as relationship property or as any particular type of relationship property depends on the use to which it has been put.

      (2) Where this section applies, that classification is to be determined—

      • (a) by the use to which it was put by the spouses or de facto partners; or

      • (b) if the marriage or de facto relationship has ended (other than by the death of 1 of the spouses or de facto partners), by the use to which it was being put before the marriage or de facto relationship ended.

      (3) In proceedings commenced after the death of 1 of the spouses or de facto partners, this section is modified by section 80..

    Application.

9 New sections 4 to 4D substituted
  • The principal Act is amended by repealing section 4, and substituting the following sections:

    4 Act a code
    • (1) This Act applies instead of the rules and presumptions of the common law and of equity to the extent that they apply—

      • (a) to transactions between spouses or de facto partners in respect of property; and

      • (b) in cases for which this Act provides, to transactions—

        • (i) between both spouses or de facto partners and third persons; and

        • (ii) between either spouse or de facto partner and third persons.

      (2) Subsection (1) does not apply where this Act expressly provides to the contrary (such as in subsection (5)).

      (3) Without limiting the generality of subsection (1),—

      • (a) the presumption of advancement does not apply between husband and wife:

      • (b) the presumption of resulting trust does not apply between husband and wife or de facto partners:

      • (c) the presumption that the use of a wife's income by her husband with her consent during the marriage is a gift does not apply between husband and wife.

      (4) Where, in proceedings that are not proceedings under this Act, any question relating to relationship property arises between spouses or de facto partners, or between either or both of them and any other person, the question must be decided as if it had been raised in proceedings under this Act.

      (5) This section does not apply if the de facto partners have lived in a de facto relationship for less than 3 years.

      (6) However, if the Court makes an order under section 25(1)(a) in respect of any relationship property of de facto partners to whom subsection (5) applies, and any question relating to relationship property arises between those de facto partners in any subsequent proceedings that are not proceedings under this Act, then—

      • (a) subsection (5) does not apply; and

      • (b) the question must be decided as if it had been raised in proceedings under this Act.

    4A Other enactments to be read subject to this Act
    • Every enactment must be read subject to this Act, unless this Act or the other enactment expressly provides to the contrary.

    4B Law relating to trustees preserved
    • (1) Nothing in section 4 or section 4A affects the law that applies where either spouse or de facto partner is acting as trustee under any deed or will.

      (2) For the purposes of this section, every enactment and every rule of law or of equity continues to operate and apply accordingly as if sections 4 and 4A had not been passed.

    4C Application to existing and future de facto relationships
    • (1) This Act applies to—

      • (a) de facto relationships that began before 1 February 2002; and

      • (b) de facto relationships that begin on or after 1 February 2002.

      (2) This Act does not apply to de facto relationships that ended before 1 February 2002.

    4D Application to de facto relationships that end on separation or death
    • This Act applies to de facto relationships that end—

      • (a) while both de facto partners are alive; or

      • (b) when 1 of the de facto partners dies.

10 Act to apply only during joint lifetimes of spouses
  • Section 5 of the principal Act is repealed.

11 Maori land not affected
  • Section 6 of the principal Act is amended by omitting the words the Maori Affairs Act 1953, and substituting the words Te Ture Whenua Maori Act 1993.

12 New sections 7 and 7A substituted
  • The principal Act is amended by repealing section 7, and substituting the following sections:

    7 Application to movable or immovable property
    • (1) This Act applies to immovable property that is situated in New Zealand.

      (2) This Act applies to movable property that is situated in New Zealand or elsewhere, if 1 of the spouses or de facto partners is domiciled in New Zealand—

      • (a) at the date of an application made under this Act; or

      • (b) at the date of any agreement between the spouses or de facto partners relating to the division of their property; or

      • (c) at the date of his or her death.

      (3) Despite subsection (2), if any order under this Act is sought against a person who is neither domiciled nor resident in New Zealand, the Court may decline to make an order in respect of any movable property that is situated outside New Zealand.

    7A Application where spouses or de facto partners agree
    • (1) This Act applies in any case where the spouses or de facto partners agree in writing that it is to apply.

      (2) Subject to subsections (1) and (3), this Act does not apply to any relationship property if—

      • (a) the spouses or de facto partners have agreed, before or at the time their marriage or de facto relationship began, that the property law of a country other than New Zealand is to apply to that property; and

      • (b) the agreement is in writing or is otherwise valid according to the law of that country.

      (3) Subsection (2) does not apply if the Court determines that the application of the law of the other country under an agreement to which that subsection applies would be contrary to justice or public policy.

13 Heading before section 8 amended
  • The principal Act is amended by omitting from the heading immediately before section 8 the word matrimonial, and substituting the word relationship.

14 Matrimonial property defined
  • (1) Section 8 of the principal Act is amended—

    • (a) by omitting the word Matrimonial where it first appears, and substituting the word Relationship:

    • (b) by omitting from paragraph (a) the word matrimonial, and substituting the word family:

    • (c) by inserting in paragraph (c), after the words husband and the wife, the words or by the de facto partners.

    (2) Section 8 of the principal Act is amended by repealing paragraphs (d) to (ee), and substituting the following paragraphs:

    • (d) all property owned by either spouse or de facto partner immediately before their marriage or de facto relationship began, if—

      • (i) the property was acquired in contemplation of the marriage or de facto relationship; and

      • (ii) the property was intended for the common use or common benefit of both spouses or de facto partners; and

    • (e) subject to sections 9(2) to (6), 9A, and 10, all property acquired by either spouse or de facto partner after their marriage or de facto relationship began; and

    • (ee) subject to sections 9(3) to (6), 9A, and 10, all property acquired, after the marriage or de facto relationship began, for the common use or common benefit of both spouses or de facto partners, if—

      • (i) the property was acquired out of property owned by either spouse or de facto partner or by both of them before the marriage or de facto relationship began; or

      • (ii) the property was acquired out of the proceeds of any disposition of any property owned by either spouse or de facto partner or by both of them before the marriage or de facto relationship began; and.

    (3) Section 8 of the principal Act is amended by repealing paragraphs (f) to (k), and substituting the following paragraphs:

    • (g) the proportion of the value of any life insurance policy (as defined in section 2), or of the proceeds of such a policy, that is attributable to the marriage or de facto relationship; and

    • (h) any policy of insurance in respect of any property described in paragraphs (a) to (ee); and

    • (i) the proportion of the value of any superannuation scheme entitlements (as defined in section 2) that is attributable to the marriage or de facto relationship; and

    • (j) all other property that is relationship property under an agreement made under Part 6; and

    • (k) any other property that is relationship property by virtue of any other provision of this Act or by virtue of any other Act; and

    • (l) any income and gains derived from, the proceeds of any disposition of, and any increase in the value of, any property described in paragraphs (a) to (k).

    (4) Section 8 of the principal Act is amended by adding, as subsection (2), the following subsection:

    • (2) In proceedings commenced after the death of 1 of the spouses or de facto partners, this section is modified by section 83.

    (5) The heading to section 8 of the principal Act is consequentially amended by omitting the word Matrimonial, and substituting the word Relationship.

15 New sections 9 to 10 substituted
  • The principal Act is amended by repealing sections 9 and 10, and substituting the following sections:

    9 Separate property defined
    • (1) All property of either spouse or de facto partner that is not relationship property is separate property.

      (2) Subject to sections 8(1)(ee), 9A(3), and 10, all property acquired out of separate property, and the proceeds of any disposition of separate property, are separate property.

      (3) Subject to section 9A, any increase in the value of separate property, and any income or gains derived from separate property, are separate property.

      (4) The following property is separate property, unless the Court considers that it is just in the circumstances to treat the property or any part of the property as relationship property:

      • (a) all property acquired by either spouse or de facto partner while they are not living together as husband and wife or as de facto partners:

      • (b) all property acquired, after the death of 1 spouse or de facto partner, by the surviving spouse or de facto partner, as provided in section 84.

      (5) Subject to subsection (6), all property acquired by either spouse or de facto partner after an order of the Court (other than an order made under section 25(3)) has been made defining the respective interests of the spouses or de facto partners in the relationship property, or dividing or providing for the division of that property, is separate property.

      (6) However, where relationship property has been divided on the bankruptcy of a spouse or de facto partner,—

      • (a) the family home and any family chattels acquired after that division may be relationship property; and

      • (b) any other property acquired by either spouse or de facto partner after the discharge of that spouse or de facto partner from bankruptcy may be relationship property.

    9A When separate property becomes relationship property
    • (1) If any increase in the value of separate property, or any income or gains derived from separate property, were attributable (wholly or in part) to the application of relationship property, then the increase in value or (as the case requires) the income or gains are relationship property.

      (2) If any increase in the value of separate property, or any income or gains derived from separate property, were attributable (wholly or in part, and whether directly or indirectly) to actions of the other spouse or de facto partner, then—

      • (a) the increase in value or (as the case requires) the income or gains are relationship property; but

      • (b) the share of each spouse or de facto partner in that relationship property is to be determined in accordance with the contribution of each spouse or de facto partner to the increase in value or (as the case requires) the income or gains.

      (3) Any separate property, or any proceeds of the disposition of any separate property, or any increase in the value of, or any income or gains derived from, separate property, is relationship property if that separate property or (as the case requires) those proceeds or the increase in value or the income or gains are used—

      • (a) with the express or implied consent of the spouse or de facto partner that owns, receives, or is entitled to them; and

      • (b) for the acquisition or improvement of, or to increase the value of, or the amount of any interest of either spouse or de facto partner in, any property referred to in section 8(1).

      (4) Subsection (3) is subject to section 10.

    10 Property acquired by succession or by survivorship or as a beneficiary under a trust or by gift
    • (1) Subsection (2) applies to the following property:

      • (a) property that a spouse or de facto partner acquires from a third person—

        • (i) by succession; or

        • (ii) by survivorship; or

        • (iii) by gift; or

        • (iv) because the spouse or de facto partner is a beneficiary under a trust settled by a third person:

      • (b) the proceeds of a disposition of property to which paragraph (a) applies:

      • (c) property acquired out of property to which paragraph (a) applies.

      (2) Property to which this subsection applies is not relationship property unless, with the express or implied consent of the spouse or de facto partner who received it, the property or the proceeds of any disposition of it have been so intermingled with other relationship property that it is unreasonable or impracticable to regard that property or those proceeds as separate property.

      (3) Property that 1 spouse or de facto partner acquires by gift from the other spouse or de facto partner is not relationship property unless the gift is used for the benefit of both spouses or de facto partners.

      (4) Regardless of subsections (2) and (3) and section 9(4), both the family home and the family chattels are relationship property, unless designated separate property by an agreement made in accordance with Part 6.

16 New Part 3 inserted
  • The principal Act is amended by inserting, after section 10, the following Part:

    Part 3
    Application of this Act

    10A Application of Act to division of relationship property where both spouses or de facto partners alive
    • This Act (other than Part 8) applies to the division of relationship property between the spouses or de facto partners when a situation described in section 25(2) arises while both spouses or de facto partners are alive.

    10B Application of Act to division of relationship property on death of spouse or de facto partner
    • (1) This Act (including Part 8) applies to the division of relationship property between spouses or de facto partners when—

      • (a) 1 of the spouses or de facto partners dies on or after 1 February 2002 (except in the situation described in section 10D(1)); or

      • (b) in the case of spouses, 1 of them dies before 1 February 2002 and, at the date of that spouse's death, no proceedings have been commenced between the spouses under this Act or the Matrimonial Property Act 1963.

      (2) Subsection (1) applies whether or not a situation described in section 25(2) arose while both spouses or de facto partners were alive.

    10C Application of Act in other circumstances
    • This Act also applies—

      • (a) in the circumstances described in sections 4(4), 4(6), 21H, 43(1), 44(1), 45(1), and 51(2), while both spouses or de facto partners are alive and after the death of 1 of the spouses or de facto partners:

      • (b) in the circumstances described in sections 25(3) and 28(1), while both spouses or de facto partners are alive and after the death of 1 of the spouses or de facto partners (although the sections are modified in proceedings commenced after the death of 1 of the spouses or de facto partners):

      • (c) in the circumstances described in sections 20 to 20F,—

        • (i) while both spouses or de facto partners are alive; and

        • (ii) if a spouse or de facto partner is subject to sections 20 to 20F at the date of his or her death, after the death of the spouse or de facto partner; and

        • (iii) if a surviving spouse or de facto partner is declared bankrupt after the death of the other spouse or de facto partner, after the death of the other spouse or de facto partner:

      • (d) in the circumstances described in sections 58 and 59, after the death of 1 of the spouses or de facto partners:

      • (e) in the circumstances described in section 87, after the death of 1 of the spouses or de facto partners.

    10D Proceedings
    • (1) If proceedings under this Act, or to which this Act applies, are commenced while both spouses or de facto partners are alive, and 1 of them dies, or they both die, before the proceedings are completed, the proceedings continue under this Act, except sections 61 to 95.

      (2) Nothing in subsection (1) prevents any proceedings from being discontinued.

      (3) If a surviving spouse or de facto partner chooses, under section 61, to apply under this Act for a division of the relationship property,—

      • (a) sections 76 to 78 apply to the proceedings; and

      • (b) sections 2 to 53A apply to the proceedings, but some of those sections are modified or affected by sections 79 to 94.

17 New Part 4 substituted
  • The principal Act is amended by repealing sections 11 to 18, and the headings before sections 11 and 15, and substituting the following Part:

    Part 4
    Division of relationship property

    Division of relationship property: general

    11 Division of relationship property
    • (1) On the division of relationship property under this Act, each of the spouses or de facto partners is entitled to share equally in—

      • (a) the family home; and

      • (b) the family chattels; and

      • (c) any other relationship property.

      (2) This section is subject to the other provisions of this Part.

    11A Where family home sold
    • (1) If the family home has been sold, each spouse or de facto partner is entitled to share equally in the proceeds of the sale as if they were the family home, if the following conditions are satisfied:

      • (a) either spouse or de facto partner or both of them have sold the family home with the intention of applying all or part of the proceeds of the sale towards the acquisition of another home as a family home:

      • (b) that home has not been acquired:

      • (c) at the date of the application to the Court, not more than 2 years have elapsed since the date when those proceeds were received or became payable, whichever is the later.

      (2) This section is subject to sections 12 to 17A.

    11B Compensation for absence of interest in family home
    • (1) This section applies where—

      • (a) section 11A does not apply; and

      • (b) either—

        • (i) there is no family home; or

        • (ii) the family home is not owned by 1 of the spouses or de facto partners or both of them.

      (2) Where this section applies, the Court must award each spouse or de facto partner an equal share in such part of the relationship property as it thinks just in order to compensate for the absence of an interest in the family home.

      (3) This section is subject to sections 12 to 17A.

    Homesteads

    12 Homesteads
    • (1) If the family home is a homestead that is owned by either spouse or de facto partner or both of them, section 11(1)(a) does not apply.

      (2) Instead, each spouse or de facto partner is entitled to share equally in a sum of money equal to the equity of either spouse or de facto partner or both of them in the homestead.

      (3) If a spouse or de facto partner does not have a beneficial interest in the land on which the homestead is situated, that spouse or de facto partner is deemed to be beneficially interested in that land until his or her share of that sum is paid or otherwise satisfied.

      (4) This section is subject to sections 13 to 17A.

    12A Valuation of homestead
    • For the purposes of section 12, a homestead's value is to be determined by ascertaining the capital value of the land on which the homestead is situated, and apportioning that value between the homestead and the remainder of that land.

    Exception to equal sharing

    13 Exception to equal sharing
    • (1) If the Court considers that there are extraordinary circumstances that make equal sharing of property or money under section 11 or section 11A or section 11B or section 12 repugnant to justice, the share of each spouse or de facto partner in that property or money is to be determined in accordance with the contribution of each spouse to the marriage or of each de facto partner to the de facto relationship.

      (2) This section is subject to sections 14 to 17A.

    Relationships of short duration

    14 Marriages of short duration
    • (1) This section applies if a marriage is a relationship of short duration (as defined in section 2E).

      (2) If this section applies, sections 11(1)(a), 11(1)(b), 11A, 11B, and 12 do not apply—

      • (a) to any asset owned wholly or substantially by 1 spouse at the date on which the marriage began; or

      • (b) to any asset that has come to 1 spouse, after the date on which the marriage began,—

        • (i) by succession; or

        • (ii) by survivorship; or

        • (iii) as the beneficiary under a trust; or

        • (iv) by gift from a third person; or

      • (c) where the contribution of 1 spouse to the marriage has clearly been disproportionately greater than the contribution of the other spouse.

      (3) In every case to which subsection (2) applies,—

      • (a) the share of each spouse in the relationship property is to be determined in accordance with the contribution of each spouse to the marriage; and

      • (b) the share of each spouse in any other relationship property that falls for division under sections 11(1)(a), 11(1)(b), 11A, 11B, and 12, and is not determined in accordance with paragraph (a), is to be determined in accordance with sections 11(1)(a), 11(1)(b), 11A, 11B, and 12.

      (4) If this section applies, each spouse is entitled to share equally in any relationship property that falls for division under section 11(1)(c), unless his or her contribution to the marriage has been clearly greater than that of the other spouse.

      (5) If, under subsection (4), the spouses do not share equally in any relationship property, the share of each spouse in that relationship property is to be determined in accordance with the contribution of each spouse to the marriage.

      (6) This section is subject to sections 15 to 17A.

      (7) In proceedings commenced after the death of 1 of the spouses, this section is modified by section 85.

    14A De facto relationships of short duration
    • (1) This section applies if a de facto relationship is a relationship of short duration (as defined in section 2E).

      (2) If this section applies, an order cannot be made under this Act for the division of relationship property unless—

      • (a) the Court is satisfied—

        • (i) that there is a child of the de facto relationship; or

        • (ii) that the applicant has made a substantial contribution to the de facto relationship; and

      • (b) the Court is satisfied that failure to make the order would result in serious injustice.

      (3) If this section applies, and the Court is satisfied that the grounds specified in subsection (2) for making an order on an application under this Act are made out, the share of each de facto partner in the relationship property is to be determined in accordance with the contribution of each de facto partner to the de facto relationship.

      (4) Nothing in this section prevents a Court from making a declaration or an order under section 25(3), even though the de facto partners have lived in a de facto relationship for less than 3 years.

      (5) This section is subject to sections 15 to 17A.

    Court may make orders to redress economic disparities

    15 Court may award lump sum payments or order transfer of property
    • (1) This section applies if, on the division of relationship property, the Court is satisfied that, after the marriage or de facto relationship ends, the income and living standards of 1 spouse or de facto partner (party B) are likely to be significantly higher than the other spouse or de facto partner (party A) because of the effects of the division of functions within the marriage or de facto relationship while the parties were living together.

      (2) In determining whether or not to make an order under this section, the Court may have regard to—

      • (a) the likely earning capacity of each spouse or de facto partner:

      • (b) the responsibilities of each spouse or de facto partner for the ongoing daily care of any minor or dependent children of the marriage or, as the case requires, any minor or dependent children of the de facto relationship:

      • (c) any other relevant circumstances.

      (3) If this section applies, the Court, if it considers it just, may, for the purpose of compensating party A,—

      • (a) order party B to pay party A a sum of money out of party B's relationship property:

      • (b) order party B to transfer to party A any other property out of party B's relationship property.

      (4) This section overrides sections 11 to 14A.

    15A Orders where spouse or de facto partner has contributed to increase in value of separate property
    • (1) This section applies if, on the division of relationship property, the Court is satisfied—

      • (a) that, after the marriage or de facto relationship ends, the income and living standards of 1 spouse or de facto partner (party B) are likely to be significantly higher than the other spouse or de facto partner (party A) because of the effects of the division of functions within the marriage or de facto relationship while the spouses or de facto partners were living together; and

      • (b) that any increase in the value of party B's separate property was attributable, wholly or in part, and whether directly or indirectly, to the actions of party B while the spouses or de facto partners were living together.

      (2) In determining whether or not to make an order under this section, the Court may have regard to—

      • (a) the likely earning capacity of each spouse or de facto partner:

      • (b) the responsibilities of each spouse or de facto partner for the ongoing daily care of any minor or dependent children of the marriage or, as the case requires, any minor or dependent children of the de facto relationship:

      • (c) any other relevant circumstances.

      (3) If this section applies, the Court, if it considers it just, may, for the purpose of compensating party A for the increase in value of party B's separate property,—

      • (a) order party B to pay party A a sum of money, whether out of relationship property or separate property:

      • (b) order party B to transfer to party A any other property, whether the property is relationship property or separate property.

      (4) This section does not limit section 15, but overrides sections 11 to 14A.

    Other provisions relating to division of relationship property

    16 Adjustment when each spouse or de facto partner owned home at date relationship began
    • (1) This section applies if,—

      • (a) at the date the marriage or de facto relationship began, each spouse or de facto partner owned a home; and

      • (b) each of those homes was capable of becoming a family home; but

      • (c) at the time when the relationship property is to be divided, the home (or the proceeds of the sale of the home) of only 1 spouse or de facto partner is included in the relationship property.

      (2) This section also applies if,—

      • (a) before the marriage or de facto relationship began, each spouse or de facto partner owned a home; and

      • (b) each of those homes was capable of becoming a family home; and

      • (c) 1 of the spouses or de facto partners (party A) sold his or her home in contemplation of the marriage or de facto relationship; and

      • (d) at the time when the relationship property is to be divided,—

        • (i) the home (or the proceeds of the sale of the home) of the other spouse or de facto partner (party B) is included in the relationship property; but

        • (ii) the proceeds of the sale of party A's home are not included in the relationship property.

      (3) If this section applies, the Court may adjust the shares of the spouses or de facto partners in any of the relationship property (including the family home and the family chattels) according to what it considers just to compensate for the inclusion of the home of only 1 spouse or de facto partner in the relationship property.

      (4) This section overrides sections 11 to 14A.

    17 Sustenance of separate property
    • (1) This section applies if the separate property of 1 spouse or de facto partner (party A) has been sustained by—

      • (a) the application of relationship property; or

      • (b) the actions of the other spouse or de facto partner (party B).

      (2) If this section applies, the Court may—

      • (a) increase the share to which party B would otherwise be entitled in the relationship property; or

      • (b) order party A to pay party B a sum of money as compensation.

      (3) This section overrides sections 11 to 14A.

    17A Diminution of separate property
    • (1) If the separate property of 1 spouse or de facto partner has been materially diminished in value by the deliberate action or inaction of the other spouse or de facto partner, the Court may, to such extent as it thinks just, diminish the share to which the other spouse or de facto partner would otherwise be entitled in the relationship property.

      (2) This section overrides sections 11 to 14A.

    18 Contributions of spouses or de facto partners
    • (1) For the purposes of this Act, a contribution to the marriage or de facto relationship means all or any of the following:

      • (a) the care of—

        • (i) any child of the marriage or child of the de facto relationship:

        • (ii) any aged or infirm relative or dependant of either spouse or de facto partner:

      • (b) the management of the household and the performance of household duties:

      • (c) the provision of money, including the earning of income, for the purposes of the marriage or de facto relationship:

      • (d) the acquisition or creation of relationship property, including the payment of money for those purposes:

      • (e) the payment of money to maintain or increase the value of—

        • (i) the relationship property or any part of that property; or

        • (ii) the separate property of the other spouse or de facto partner or any part of that property:

      • (f) the performance of work or services in respect of—

        • (i) the relationship property or any part of that property; or

        • (ii) the separate property of the other spouse or de facto partner or any part of that property:

      • (g) the forgoing of a higher standard of living than would otherwise have been available:

      • (h) the giving of assistance or support to the other spouse or de facto partner (whether or not of a material kind), including the giving of assistance or support that—

        • (i) enables the other spouse or de facto partner to acquire qualifications; or

        • (ii) aids the other spouse or de facto partner in the carrying on of his or her occupation or business.

      (2) There is no presumption that a contribution of a monetary nature (whether under subsection (1)(c) or otherwise) is of greater value than a contribution of a non-monetary nature.

    18A Effect of misconduct of spouses or de facto partners
    • (1) Except as permitted by subsections (2) and (3), a Court may not take any misconduct of a spouse or de facto partner into account in proceedings under this Act, whether to diminish or detract from the positive contribution of that spouse or de facto partner or otherwise.

      (2) Subject to subsection (3), the Court may take into account any misconduct of a spouse or de facto partner—

      • (a) in determining the contribution of a spouse to the marriage, or of a de facto partner to the de facto relationship; or

      • (b) in determining what order it should make under any of sections 26, 26A, 27, 28, 28B, 28C, and 33.

      (3) For conduct to be taken into account under subsection (2), the conduct must have been gross and palpable and must have significantly affected the extent or value of the relationship property.

    18B Compensation for contributions made after separation
    • (1) In this section, relevant period, in relation to a marriage or de facto relationship, means the period after the marriage or de facto relationship has ended (other than by the death of 1 of the spouses or de facto partners) but before the date of the hearing of an application under this Act by the Court of first instance.

      (2) If, during the relevant period, a spouse or de facto partner (party A) has done anything that would have been a contribution to the marriage or de facto relationship if the marriage or de facto relationship had not ended, the Court, if it considers it just, may for the purposes of compensating party A—

      • (a) order the other spouse or de facto partner (party B) to pay party A a sum of money:

      • (b) order party B to transfer to party A any property, whether the property is relationship property or separate property.

      (3) In proceedings commenced after the death of 1 of the spouses or de facto partners, this section is modified by section 86.

    18C Compensation for dissipation of relationship property after separation
    • (1) In this section, relevant period has the same meaning as in section 18B.

      (2) If, during the relevant period, the relationship property has been materially diminished in value by the deliberate action or inaction of one spouse or de facto partner (party B), the Court may, for the purposes of compensating the other spouse or de facto partner (party A),—

      • (a) order party B to pay party A a sum of money:

      • (b) order party B to transfer to party A any property, whether the property is relationship property or separate property.

      (3) In proceedings commenced after the death of 1 of the spouses or de facto partners, this section is modified by section 86.

18 New Part heading substituted
  • The principal Act is amended by repealing the heading immediately before section 19, and substituting the following Part heading:

    Part 5
    Relationship property and creditors.

19 Effect of Act while property undivided
  • Section 19 of the principal Act is amended by inserting, after the word spouse in both places where it occurs, the words or de facto partner.

20 New sections 20 to 20F substituted
  • The principal Act is amended by repealing section 20, and substituting the following sections:

    20 Interpretation
    • (1) In sections 20A to 20E, unless the context otherwise requires,—

      personal debt means—

      • (a) a debt that is not a relationship debt:

      • (b) a debt to the extent that it is not a relationship debt

      relationship debt means a debt that has been incurred, or to the extent that it has been incurred,—

      • (a) by the spouses or de facto partners jointly; or

      • (b) in the course of a common enterprise carried on by the spouses or de facto partners, whether alone or together with another person; or

      • (c) for the purpose of acquiring, improving, or maintaining relationship property; or

      • (d) for the benefit of both spouses or de facto partners in the course of managing the affairs of the household; or

      • (e) for the purpose of bringing up any child of the marriage or, as the case requires, any child of the de facto relationship.

      (2) To avoid any doubt, for a debt to fall within paragraph (c) of the definition of relationship debt in subsection (1), it is not necessary that, at the time at which the debt was incurred, the property for which it was incurred was relationship property, as long as the property later becomes relationship property.

    20A Rights of creditors preserved
    • (1) Secured and unsecured creditors of a spouse or de facto partner have the same rights against that spouse or de facto partner, and against property owned by the spouse or de facto partner, as if this Act had not been passed.

      (2) If, had this Act not been passed, any property would have passed to the Official Assignee on or following the bankruptcy of a spouse or de facto partner, then that property (and no other property) passes to the Official Assignee as if this Act had not been passed.

      (3) This section—

      • (a) is subject to section 20B; and

      • (b) applies except as otherwise expressly provided in this Act.

    20B Protected interest in family home
    • (1) Each spouse or de facto partner has a protected interest in the family home, which includes,—

      • (a) where section 11A applies, the proceeds of sale of the family home:

      • (b) where section 11B applies, the property shared under that section:

      • (c) where section 12 applies, the money shared under that section.

      (2) The protected interest of a spouse or de facto partner is not liable for the unsecured debts of the other spouse or de facto partner, other than an unsecured debt incurred—

      • (a) by the spouses or de facto partners jointly; or

      • (b) by the spouse or de facto partner subsequently declared bankrupt, for the purpose of acquiring, improving, or repairing the family home.

      (3) The value of the protected interest of a spouse or de facto partner is as follows:

      • (a) where section 11 applies, the protected interest is to the extent of the lesser of—

        • (i) the specified sum; or

        • (ii) one half of the equity of the spouses or de facto partners in the family home:

      • (b) where section 11A applies, the protected interest is to the extent of the lesser of—

        • (i) the specified sum; or

        • (ii) one half of the proceeds of the sale of the family home:

      • (c) where section 11B or section 12 applies, the protected interest is to the extent of the lesser of—

        • (i) the specified sum; or

        • (ii) one half of the property or money shared under the applicable section.

      (4) In this section, specified sum means the amount for the time being prescribed under section 53A for the purposes of this section.

    20C Payment of protected interest on bankruptcy of other spouse or de facto partner
    • (1) If, on the bankruptcy of a spouse or de facto partner, the family home (including a homestead) or, if section 11A applies, the proceeds of the sale of the family home pass to the Official Assignee, the Official Assignee must pay to the other spouse or de facto partner the lesser of—

      • (a) the amount of the protected interest of the other spouse or de facto partner; or

      • (b) so much of that amount as remains after the Official Assignee has paid the debts specified in subsection (2).

      (2) The debts referred to in subsection (1)(b) are as follows:

      • (a) any debts secured on the family home or homestead or, as the case may be, the proceeds of sale of the family home:

      • (b) any unsecured debt incurred—

        • (i) by the spouses or de facto partners jointly; or

        • (ii) by the spouse or de facto partner subsequently declared bankrupt, for the purpose of acquiring, improving, or repairing the family home.

      (3) If, on the bankruptcy of a spouse or de facto partner, section 11B applies, the Official Assignee must pay to the other spouse or de facto partner such amount in satisfaction of the protected interest of that spouse or de facto partner as the Court may direct, on application by the Official Assignee or by that spouse or de facto partner.

    20D Calculation of net value of relationship property
    • The value of the relationship property that may be divided between the spouses or de facto partners under this Act must be calculated by—

      • (a) ascertaining the total value of the relationship property; and then

      • (b) deducting from that total any secured or unsecured relationship debts owed by either or both spouses or de facto partners.

    20E Compensation for satisfaction of personal debts
    • (1) If a secured or unsecured personal debt of 1 spouse or de facto partner (party A) has been paid or satisfied (directly or indirectly) out of the relationship property, the Court may make 1 of the following orders in favour of the other spouse or de facto partner (party B):

      • (a) an order increasing proportionately the share to which party B would otherwise be entitled in the relationship property:

      • (b) an order that property that is part of party A's separate property be treated as relationship property for the purposes of any division of relationship property under this Act:

      • (c) an order that party A pay party B a sum of money as compensation.

      (2) The Court may make an order under this section on its own initiative, but must make an order under this section if party B applies for such an order.

      (3) This section applies whether the debt was paid or satisfied voluntarily or pursuant to legal process.

    20F Application of Joint Family Homes Act 1964
    • Nothing in sections 20 to 20E derogates from the provisions of the Joint Family Homes Act 1964.

21 New Part 6 substituted
  • (1) The principal Act is amended by repealing section 21, and the heading immediately before that section, and substituting the following Part:

    Part 6
    Contracting out

    When persons can contract out

    21 Spouses or de facto partners may contract out of this Act
    • (1) A husband and wife or de facto partners, or any 2 persons in contemplation of entering into a marriage or de facto relationship, may, for the purpose of contracting out of the provisions of this Act, make any agreement they think fit with respect to the status, ownership, and division of their property (including future property).

      (2) An agreement made under this section may relate to the status, ownership, and division of property in either or both of the following circumstances:

      • (a) during the joint lives of the spouses or de facto partners:

      • (b) when 1 of the spouses or de facto partners dies.

      (3) This section is subject to section 47.

    21A Spouses or de facto partners may settle differences by agreement
    • (1) A husband and wife or de facto partners may, for the purpose of settling any differences that have arisen between them concerning property owned by either or both of them, make any agreement they think fit with respect to the status, ownership, and division of that property.

      (2) This section is subject to section 47.

    21B Surviving spouse or de facto partner and personal representative may agree on division of property
    • (1) This section applies—

      • (a) when proceedings are commenced while both spouses or de facto partners are alive, and 1 spouse or de facto partner dies before the proceedings are completed; or

      • (b) when 1 spouse or de facto partner dies and the other spouse or de facto partner, or the personal representative of the deceased spouse or de facto partner, intends to commence, or commences, proceedings after the death of the deceased.

      (2) If this section applies, a surviving spouse or de facto partner (the survivor) and the personal representative of the deceased spouse or de facto partner may, for the purpose of settling the proceedings or (as the case requires) a claim by the survivor or the personal representative with respect to property owned by either or both of those spouses or de facto partners, make any agreement they think fit with respect to the status, ownership, and division of that property.

      (3) If the survivor is also the sole executor or sole administrator of the estate of the deceased spouse or de facto partner, an agreement under this section is not valid unless the Court approves the agreement.

      (4) Subsection (3) does not apply if a grant of administration is not required.

      (5) This section is subject to section 47.

    21C Court may be asked to approve agreement between surviving spouse or de facto partner and personal representative
    • (1) If a surviving spouse or de facto partner and the personal representative of the deceased spouse or de facto partner intend to make an agreement under section 21B, either or both of them may submit an agreement, in draft, to the Court for approval.

      (2) If the Court approves the agreement, the agreement has effect in accordance with section 21B.

    Subject matter of agreement

    21D Subject matter of agreement
    • (1) An agreement under section 21 or section 21A or section 21B may do all or any of the following:

      • (a) provide that any property, or any class of property, is to be relationship property or is to be separate property:

      • (b) define the share of the relationship property, or of any part of the relationship property, that each spouse or de facto partner is to be entitled to when the marriage or de facto relationship ends:

      • (c) define the share of the relationship property, or of any part of the relationship property, that the surviving spouse or de facto partner and the estate of the deceased spouse or de facto partner is to be entitled to on the death of 1 of the spouses or de facto partners:

      • (d) provide for the calculation of those shares:

      • (e) prescribe the method by which the relationship property, or any part of the relationship property, is to be divided.

      (2) This section does not limit the generality of sections 21 to 21B.

    Model forms of agreement

    21E Regulations prescribing model forms of agreement
    • (1) The purpose of this section is to minimise the legal expenses of people who wish to enter into an agreement under section 21 or section 21A or section 21B.

      (2) The Governor-General may, by Order in Council, make regulations prescribing model forms of agreement for the purposes of section 21 or section 21A or section 21B.

      (3) Use of a prescribed model form of agreement is optional.

    Procedural requirements

    21F Agreement void unless complies with certain requirements
    • (1) Subject to section 21H, an agreement entered into under section 21 or section 21A or section 21B is void unless the requirements set out in subsections (2) to (5) are complied with.

      (2) The agreement must be in writing and signed by both parties.

      (3) Each party to the agreement must have independent legal advice before signing the agreement.

      (4) The signature of each party to the agreement must be witnessed by a lawyer.

      (5) The lawyer who witnesses the signature of a party must certify that, before that party signed the agreement, the lawyer explained to that party the effect and implications of the agreement.

    21G Other grounds of invalidity not affected
    • Section 21F does not limit or affect any enactment or rule of law or of equity that makes a contract void, voidable, or unenforceable on any other ground.

    21H Court may give effect to agreement in certain circumstances
    • (1) Even though an agreement is void for non-compliance with a requirement of section 21F, the Court may declare that the agreement has effect, wholly or in part or for any particular purpose, if it is satisfied that the non-compliance has not materially prejudiced the interests of any party to the agreement.

      (2) The Court may make a declaration under this section in the course of any proceedings under this Act, or on application made for the purpose.

    Agreements by minors

    21I Agreements entered into by minors
    • (1) Subject to subsection (2), if a minor enters into an agreement under section 21 or section 21A or section 21B, the agreement, and every instrument executed by that minor for the purpose of giving effect to the agreement, is as valid and effectual as if the minor were of full age.

      (2) If a minor who is younger than 18 years, and is not and has not been married, enters into an agreement under section 21 or section 21A or section 21B, the agreement is not valid without the approval of the Court.

      (3) An approval may be given on application by the minor before or after the agreement has been signed by the parties.

    Court may set agreement aside

    21J Court may set agreement aside if would cause serious injustice
    • (1) Even though an agreement satisfies the requirements of section 21F, the Court may set the agreement aside if, having regard to all the circumstances, it is satisfied that giving effect to the agreement would cause serious injustice.

      (2) The Court may exercise the power in subsection (1) in the course of any proceedings under this Act, or on application made for the purpose.

      (3) This section does not limit or affect any enactment or rule of law or of equity that makes a contract void, voidable, or unenforceable on any other ground.

      (4) In deciding, under this section, whether giving effect to an agreement made under section 21 or section 21A or section 21B would cause serious injustice, the Court must have regard to—

      • (a) the provisions of the agreement:

      • (b) the length of time since the agreement was made:

      • (c) whether the agreement was unfair or unreasonable in the light of all the circumstances at the time it was made:

      • (d) whether the agreement has become unfair or unreasonable in the light of any changes in circumstances since it was made (whether or not those changes were foreseen by the parties):

      • (e) the fact that the parties wished to achieve certainty as to the status, ownership, and division of property by entering into the agreement:

      • (f) any other matters that the Court considers relevant.

      (5) In deciding, under this section, whether giving effect to an agreement made under section 21B would cause serious injustice, the Court must also have regard to whether the estate of the deceased spouse or de facto partner has been wholly or partly distributed.

    Miscellaneous provisions

    21K Agreements made for valuable consideration
    • (1) Every agreement under section 21 or section 21A or section 21B is taken to have been made for valuable consideration.

      (2) Nothing in this section limits or affects the manner of determining, for the purposes of the Estate and Gift Duties Act 1968, whether a disposition of property is a gift.

    21L Enforcement of agreements
    • (1) Remedies that, under any enactment or rule of law or of equity, are available for the enforcement of contracts may be used for the enforcement of agreements under section 21 or section 21A or section 21B.

      (2) This section is subject to the provisions of this Part.

    21M Consequences of invalidity of agreement
    • If an agreement purporting to be made under section 21 or section 21A or section 21B is void or is avoided or is invalid or unenforceable (including an agreement set aside under section 21J), the provisions of this Act have effect as if the agreement had never been made.

    21N Other powers and capacities not affected
    • (1) Nothing in this Part limits or affects the capacity of either spouse or de facto partner to agree to acquire or hold any property jointly or in common, whether or not together with any other person, and whether legally or beneficially.

      (2) Nothing in this Part limits or affects the power of spouses or de facto partners to make gifts to each other.

      (3) Regardless of any rule of law, a gift between spouses or de facto partners may be made orally or in writing, and does not need to be made by deed or by delivery.

      (4) Subsection (3) does not apply to de facto partners who have lived in a de facto relationship for less than 3 years.

    21O Application of Act to relationship property not subject to agreement
    • Relationship property is subject to the provisions of this Act if neither of the following kinds of agreement applies to the property:

      • (a) an agreement under section 21 or section 21A or section 21B:

      • (b) an agreement to which section 21P or section 21Q applies, or to the extent that section 21Q applies.

    Agreements made before 1 August 2001

    21P Agreements made before 1 August 2001 between de facto partners
    • (1) This section applies to any agreement—

      • (a) that is made, before 1 August 2001, by de facto partners, or by any 2 persons in contemplation of entering into a de facto relationship; and

      • (b) that is made with respect to the status, ownership, or division of their property.

      (2) An agreement to which subsection (1) applies—

      • (a) may relate to existing or future property, or both:

      • (b) may relate to the status, ownership, or division of property in either or both of the following circumstances:

        • (i) during the joint lives of the de facto partners:

        • (ii) when 1 of them dies.

      (3) Subsection (2) does not limit the generality of subsection (1).

    21Q Agreements made before 1 August 2001 between spouses relating to division of property on death
    • This section applies to any agreement—

      • (a) that is made, before 1 August 2001, by a husband and wife, or by any 2 persons in contemplation of marriage; and

      • (b) that is made with respect to, or to the extent that it is made with respect to, the status, ownership, or division of their property when 1 of them dies.

    21R Agreements to have effect as if Act not passed
    • (1) The following agreements, to the extent that the agreements were valid and would have been enforceable before 1 August 2001, have effect as if this Act had not been passed:

      • (a) an agreement to which section 21P applies:

      • (b) an agreement to which section 21Q applies, or to the extent that section 21Q applies.

      (2) This section is subject to section 47.

    21S Agreements made under previous section 21 before 1 August 2001
    • Any agreement made before 1 August 2001 under section 21 (as that section existed immediately before that date) is to be treated as if it had been made under section 21 or section 21A (as those sections existed after that date), whichever section is applicable, and this Part applies accordingly.

    Agreements made between 1 August 2001 and 31 January 2002, where marriage or de facto relationship ends before 1 February 2002

    21T Agreements made under this Part before 1 February 2002, where marriage or de facto relationship ends before that date
    • (1) This section applies to any agreement made under section 21 if—

      • (a) the agreement is made, on or after 1 August 2001 and before 1 February 2002, by 2 de facto partners, or by any 2 persons in contemplation of entering into a de facto relationship; and

      • (b) the agreement is made with respect to the status, ownership, or division of their property—

        • (i) during the joint lives of the de facto partners:

        • (ii) when 1 of them dies; and

      • (c) the de facto relationship ends before 1 February 2002.

      (2) This section also applies to any agreement made under section 21 if—

      • (a) the agreement is made, on or after 1 August 2001 and before 1 February 2002, by a husband and wife, or by any 2 persons in contemplation of marriage; and

      • (b) the agreement is made with respect to, or to the extent that it is made with respect to, the status, ownership, or division of their property when 1 of them dies; and

      • (c) 1 of the spouses dies before 1 February 2002.

      (3) The following agreements, to the extent that the agreements were valid and would have been enforceable before 1 August 2001, have effect as if this Act had not been passed:

      • (a) an agreement to which subsection (1) applies:

      • (b) an agreement to which subsection (2) applies, or to the extent that subsection (2) applies.

      (4) This section is subject to section 47.

    (2) This section comes into force on 1 August 2001.

    (3) For the purposes of applying Part 6 of the principal Act during the period beginning on 1 August 2001 and ending with the close of 31 January 2002, all terms used in that Part have the meanings given to them in sections 2 to 2D of the principal Act (as substituted by section 8) as if section 8 were in force during that period.

22 New Part heading and heading substituted
  • The principal Act is amended by repealing the heading immediately before section 22, and substituting the following Part heading and heading:

    Part 7
    Proceedings under this Act.

    General.

23 New section 22 substituted
  • The principal Act is amended by repealing section 22, and substituting the following section:

    22 Jurisdiction
    • (1) Every application under this Act must be heard and determined in a Family Court.

      (2) This section is subject to any other provision of this Act that confers jurisdiction on any other court.

      (3) Regardless of subsections (1) and (2), a Family Court Judge may order that proceedings be transferred to the High Court if the Judge is satisfied that the High Court is the more appropriate venue for dealing with the proceedings, because of their complexity or the complexity of a question in issue in them.

      (4) The Family Court Judge may transfer proceedings on the application of a party to the proceedings or on his or her own initiative.

      (5) Proceedings transferred to the High Court continue in that Court as if they had been properly commenced there.

24 New section 23 substituted
  • The principal Act is amended by repealing section 23, and substituting the following section:

    23 Who can apply
    • (1) The following persons may apply for an order under section 25(1)(a) or (b) or an order or declaration under section 25(3):

      • (a) either spouse or de facto partner, or both of them jointly:

      • (b) any person on whom the spouses or de facto partners have made conflicting claims in respect of property.

      (2) The Official Assignee in Bankruptcy of the property of either spouse or de facto partner may not apply for an order under section 25(1)(a), but may apply for an order under section 25(1)(b) or an order or declaration under section 25(3).

      (3) If 1 of the spouses or de facto partners has died, the application of this section is modified by section 88 (except in a situation described in section 10D(1)).

25 New sections 24 to 26A and new headings substituted
  • The principal Act is amended by repealing sections 24 to 26, and substituting the following sections and headings:

    24 Time limits for making applications
    • (1) The following time limits apply in relation to applications made under this Act:

      • (a) an application made after a marriage has been dissolved by an order dissolving the marriage must be made before the expiry of the period of 12 months after the date on which that order takes effect as a final order:

      • (b) an application made after an order has been made declaring a marriage to be void ab initio must be made before the expiry of the period of 12 months after the date of the making of the order:

      • (c) an application made after a de facto relationship has ended must be made no later than 3 years after the de facto relationship ended.

      (2) Regardless of subsection (1), the Court may extend the time for making an application after hearing—

      • (a) the applicant; and

      • (b) any other persons who would have an interest in the property that would be affected by the order sought and who the Court considers should be heard.

      (3) The Court's power under this section extends to cases where the time for applying has already expired.

      (4) If 1 of the spouses or de facto partners has died, the application of this section is modified by section 89 (except in a situation described in section 10D(1)).

    25 When Court may make orders
    • (1) On an application under section 23, the Court may—

      • (a) make any order it considers just—

        • (i) determining the respective shares of each spouse or de facto partner in the relationship property or any part of that property; or

        • (ii) dividing the relationship property or any part of that property between the spouses or de facto partners:

      • (b) make any other order that it is empowered to make by any provision of this Act.

      (2) The Court may not make an order under subsection (1) unless it is satisfied,—

      • (a) in the case of a marriage,—

        • (i) that the husband and wife are living apart (whether or not they have continued to live in the same residence) or are separated; or

        • (ii) that the marriage has been dissolved; or

      • (b) in the case of a de facto relationship, that the de facto partners no longer have a de facto relationship with each other; or

      • (c) that 1 spouse or de facto partner is endangering the relationship property or seriously diminishing its value, by gross mismanagement or by wilful or reckless dissipation of property or earnings; or

      • (d) that either spouse or de facto partner is an undischarged bankrupt.

      (3) Regardless of subsection (2), the Court may at any time make any order or declaration relating to the status, ownership, vesting, or possession of any specific property as it considers just.

      (4) To avoid any doubt, but without limiting subsection (3), if proceedings under this Act are pending, the Court, if it considers it appropriate in the circumstances, may make an interim order under that subsection for the sale of any relationship property, and may give any directions it thinks fit with respect to the proceeds.

      (5) This section is subject to the other provisions of this Act.

      (6) In proceedings commenced after the death of 1 of the spouses or de facto partners, this section is modified by section 91.

    Orders for benefit of children of marriage or children of de facto relationship

    26 Orders for benefit of children of marriage or children of de facto relationship
    • (1) In proceedings under this Act, the Court must have regard to the interests of any minor or dependent children of the marriage or, as the case requires, any minor or dependent children of the de facto relationship and, if it considers it just, may make an order settling the relationship property or any part of that property for the benefit of the children of the marriage or children of the de facto relationship or of any of them.

      (2) If the Court makes an order under subsection (1), the Court may reserve such interest (if any) of either spouse or de facto partner, or of both of them, in the relationship property as the Court considers just.

      (3) An order under this section may be made and has effect regardless of any agreement under Part 6.

    Postponement of sharing

    26A Postponement of sharing
    • (1) On the division of relationship property under this Act, the Court may make an order postponing the vesting of any share in the relationship property, either wholly or in part, until a specified future date or until the occurrence of a specified event if the Court is satisfied that immediate vesting would cause undue hardship for a spouse or de facto partner who is the principal provider of ongoing daily care for 1 or more minor or dependent children of the marriage or, as the case requires, for 1 or more minor or dependent children of the de facto relationship.

      (2) The Court may order postponement of vesting under this section only for as long as necessary, and only to the extent necessary, to alleviate the undue hardship.

      (3) Nothing in this section limits section 33..

    Occupation orders, tenancy orders, and furniture orders.

26 Occupation orders
  • (1) Section 27(1) of the principal Act is amended—

    • (a) by omitting the words the husband or the wife, and substituting the words either spouse or de facto partner:

    • (b) by omitting the word matrimonial where it first appears, and substituting the word family:

    • (c) by omitting the word matrimonial where it appears for the second time, and substituting the word relationship.

    (2) Section 27(2) of the principal Act is amended—

    • (a) by inserting, after the word spouse, the words or de facto partner:

    • (b) by omitting the word matrimonial, and substituting the word family.

    (3) Section 27(3) of the principal Act is amended—

    • (a) by omitting the words Notwithstanding anything in section 5 of this Act,:

    • (b) by omitting the words the husband or wife, and substituting the words a spouse or de facto partner.

    (4) Section 27 of the principal Act is amended by adding the following subsection:

    • (5) In proceedings commenced after the death of 1 of the spouses or de facto partners, this section is modified by section 91.

27 Orders with respect to tenancy
  • (1) Section 28 of the principal Act is amended by repealing subsection (1), and substituting the following subsections:

    • (1) Regardless of section 23, the Court may at any time, on the application of either spouse or de facto partner, make an order vesting in either spouse or de facto partner (the applicant) the tenancy of any dwellinghouse.

    • (1A) The Court may not make an order under this section unless, at the time of the making of the order,—

      • (a) the spouse or de facto partner against whom the order is made (the other party) is or was the sole tenant of the dwellinghouse, or is or was a tenant holding jointly or in common with the applicant; and

      • (b) the other party is a tenant of the dwellinghouse; and

      • (c) either spouse or de facto partner is residing in the dwellinghouse.

    (2) Section 28 of the principal Act is amended by adding the following subsection:

    • (7) In proceedings commenced after the death of 1 of the spouses or de facto partners, this section is modified by section 91.

28 Factors affecting occupation orders and orders with respect to tenancy
  • (1) Section 28A(1) of the principal Act is amended—

    • (a) by inserting, after the word minor, the word or:

    • (b) by inserting, after the word marriage, the words or, as the case requires, any minor or dependent child of the de facto relationship,.

    (2) Section 28A of the principal Act is amended by adding the following subsection:

    • (3) In proceedings commenced after the death of 1 of the spouses or de facto partners, this section is affected by section 91.

29 New sections 28B to 28D and heading substituted
  • The principal Act is amended by repealing section 28B, and substituting the following sections and heading:

    28B Ancillary furniture order
    • (1) On or after making an occupation order under section 27(1) or a tenancy order under section 28(1), the Court may make an order granting, to the person in whose favour the order is or has been made, the use of all or any of the furniture, household appliances, and household effects in the family home or other premises to which the occupation order relates or (as the case requires) in the dwellinghouse to which the tenancy order relates.

      (2) An order made under this section may be for such period, and on such terms and conditions, as the Court thinks fit.

    28C Furniture required to equip another household
    • (1) Regardless of section 23, the Court may at any time make an order granting to either the spouse or de facto partner (the applicant) the possession and use of all or any of the furniture, household appliances, and household effects in—

      • (a) the family home or any other premises forming part of the relationship property; or

      • (b) any dwellinghouse in respect of which a tenancy order could be made under section 28(1) in favour of the applicant.

      (2) Either spouse or de facto partner may apply for an order under this section.

      (3) The Court may make an order under this section only if it is satisfied that the furniture, household appliances, and household effects are reasonably required to equip another dwellinghouse in which the applicant is or will be living (whether alone or with 1 or more children of the marriage or, as the case requires, 1 or more children of the de facto relationship).

      (4) In determining whether to make an order under this section, the Court must have particular regard to any need of the applicant to have suitable furniture, household appliances, and household effects to provide for the needs of any children of the marriage or, as the case requires, any children of the de facto relationship, where those children live, or will be living, with the applicant.

      (5) Subsection (4) does not limit section 26(1).

      (6) An order made under this section may be for such period, and on such terms and conditions, as the Court thinks fit.

      Compare: 1995 No 86 s 67

    28D Effect of furniture orders
    • (1) The person in whose favour an order is made under section 28B or section 28C is entitled, to the exclusion of the person against whom the order is made, to the possession of the furniture, household appliances, and household effects to which the order relates for as long as the order is in force.

      (1) An order to which this section applies has effect and may be enforced as if it were an order of the Court for delivery of chattels granted in favour of the person for whose benefit the order is made.

      Compare: 1995 No 86 ss 64, 68.

    Hire purchase agreements.

30 Orders when property subject to hire purchase agreement
  • Section 29 of the principal Act is amended—

    • (a) by omitting the words the husband or the wife or both, and substituting the words either or both spouses or de facto partners:

    • (b) by inserting, after the word spouse, the words or de facto partner.

31 New heading inserted
  • The principal Act is amended by inserting, immediately before section 30, the following heading:

    Insurance policies.

32 Orders in relation to insurance policies
  • Section 30 of the principal Act is amended—

    • (a) by omitting from paragraph (a) the words the husband or the wife, and substituting the words either spouse or de facto partner:

    • (b) by inserting, after the word spouse where it appears in paragraphs (a) and (b), the words or de facto partner.

33 New heading inserted
  • The principal Act is amended by inserting, immediately before section 31, the following heading:

    Superannuation scheme entitlements.

34 Orders in relation to superannuation rights
  • (1) Section 31(1) of the principal Act is amended—

    • (a) by omitting the word matrimonial, and substituting the word relationship:

    • (b) by omitting the expression section 8(i), and substituting the expression section 8(1)(i):

    • (c) by omitting the words the husband or wife, and substituting the words either spouse or de facto partner:

    • (d) by inserting, after the word spouse, the words or de facto partner.

    (2) Section 31(3) of the principal Act is amended by inserting, after the word he, the words or she.

35 New headings and section 32 substituted
  • The principal Act is amended by repealing section 32, and substituting the following headings and section:

    Orders relating to maintenance and child support

    32 Orders relating to maintenance and child support
    • (1) In any proceedings, the Court must have regard to—

      • (a) any order made under the Family Proceedings Act 1980 for the maintenance of a spouse or de facto partner; and

      • (b) any child support payable by 1 spouse or de facto partner, under a formula assessment under the Child Support Act 1991, for a child of the marriage or, as the case requires, a child of the de facto relationship; and

      • (c) any voluntary agreement, whether or not the agreement has been accepted under Part III of the Child Support Act 1991.

      (2) In any proceedings, the Court, if it considers it just, may—

      • (a) make an order under the Family Proceedings Act 1980 for the maintenance of a spouse or de facto partner:

      • (b) discharge, vary, extend, or suspend an order made under the Family Proceedings Act 1980 for the maintenance of a spouse or de facto partner:

      • (c) make any order in relation to child support that may be made under section 106 or section 109 or section 112 of the Child Support Act 1991, as if an application had been made under section 104 or (as the case requires) section 108 or section 112 of that Act:

      • (d) cancel, vary, extend, or suspend a voluntary agreement.

      (3) An order made under this Act in respect of relationship property is not sufficient by itself to support—

      • (a) an application under section 99 of the Family Proceedings Act 1980 for the discharge, variation, extension, or suspension of an order for the maintenance of a spouse or de facto partner; or

      • (b) an application for an order under Part VII of the Child Support Act 1991; or

      • (c) the cancellation, variation, extension, or suspension of a voluntary agreement..

    Ancillary powers.

36 Ancillary powers of Court
  • (1) Section 33 of the principal Act is amended by repealing subsection (3), and substituting the following subsection:

    • (3) In particular, but without limiting the generality of subsections (1) and (2), the Court may make any 1 or more of the following orders:

      • (a) an order for the sale of the relationship property or any part of the relationship property, and for the division, vesting, or settlement of the proceeds:

      • (b) in the case of property owned by both spouses or de facto partners jointly, an order vesting the property in both spouses or de facto partners in common in such shares as the Court considers just:

      • (c) an order vesting the relationship property, or any part of the relationship property, in either spouse or de facto partner:

      • (d) an order postponing the vesting of any share in the relationship property, or any part of such share, until a future date specified in the order or until the occurrence of a future event specified in the order:

      • (e) an order for the partition or vesting of any property:

      • (f) in the case of property owned by 1 spouse or de facto partner, an order vesting the property in both spouses or de facto partners jointly or in common in shares that the Court considers just:

      • (g) in the case of property owned by both spouses or de facto partners, jointly or in common, an order vesting the property in 1 of them:

      • (h) an order for the cancellation of the settlement of a joint family home:

      • (i) an order for the payment of a sum of money by 1 spouse or de facto partner to the other:

      • (j) an order for the transfer of land, or of any interest in land, including a lease, licence, or tenancy:

      • (k) an order for the transfer of shares or stock, or of mortgages, charges, debentures, or other securities, or of the title or documents of title of any property:

      • (l) an order for the transfer of rights or obligations under any instrument or contract, and an order of this kind has effect regardless of any provision or term of the instrument or contract:

      • (m) an order varying the terms of any trust or settlement, other than a trust under a will or other testamentary disposition:

      • (n) in the case of money or other property that is part of the separate property of 1 spouse or de facto partner, an order requiring that spouse or de facto partner to pay the money, or transfer the other property, to the other.

    (2) Section 33(4) of the principal Act is amended by inserting, after the word spouse, the words or de facto partner.

    (3) Section 33(5) of the principal Act is amended by omitting the word matrimonial, and substituting the word relationship.

    (4) Section 33(7) of the principal Act is amended by inserting, after the word his, the words or her.

37 New heading inserted
  • The principal Act is amended by inserting, immediately before section 35, the following heading:

    Miscellaneous provisions.

38 Proceedings may be in private
  • Section 35(1) of the principal Act is amended by omitting the words the husband or the wife, and substituting the words either spouse or de facto partner.

39 Restriction of publication of reports of proceedings
  • (1) Section 35A of the principal Act is amended by repealing subsection (2), and substituting the following subsection:

    • (2) Every person who contravenes subsection (1) commits an offence against this Act, and is liable on summary conviction,—

      • (a) in the case of an individual, to a fine not exceeding $1,000:

      • (b) in the case of a body corporate, to a fine not exceeding $5,000.

    (2) Section 35A of the principal Act is amended by repealing subsection (4), and substituting the following subsection:

    • (4) Nothing in this section applies to the publication of any of the following:

      • (a) a report in a publication that—

        • (i) is genuinely of a professional or technical nature; and

        • (ii) is intended for circulation among members of the legal or accountancy professions, officers of the Public Service, or persons engaged in commercial occupations:

      • (b) statistical information relating to proceedings under this Act:

      • (c) the results of any genuine research relating to proceedings under this Act, as long as the publication does not include any name or particulars likely to lead to the identification of any of the parties to the proceedings, or of any other person to whom the proceedings relate.

40 Persons entitled to be heard
  • Section 37 of the principal Act is amended by adding, as subsection (2), the following subsection:

    • (2) In proceedings commenced after the death of 1 of the spouses or de facto partners, this section is modified by section 92.

41 New section 37A inserted
  • The principal Act is amended by inserting, after section 37, the following section:

    37A Court may appoint lawyer for children
    • (1) The Court may appoint a lawyer to represent any minor or dependent children of the marriage or, as the case requires, any minor or dependent children of the de facto relationship in any proceedings under this Act if, in the opinion of the Court, special circumstances make the appointment necessary or desirable.

      (2) Fees payable to a lawyer appointed under subsection (1), and reasonable expenses incurred,—

      • (a) may be determined in accordance with regulations made under this Act; and

      • (b) must be paid by 1 or more of the parties to the proceedings as ordered by the Court.

      (3) However, if the Court thinks it proper, the Court may order that the fees and expenses be paid out of public money appropriated by Parliament for the purpose.

      (4) If the Crown pays the amount payable under subsection (2)(b), the amount is a debt due to the Crown by the party or parties ordered to pay it and, if that party or those parties do not pay that amount, the Crown may recover it by order of the Court in the same manner as a judgment of that Court.

42 Inquiries, and settlement of schemes
  • Section 38(2) of the principal Act is amended by—

    • (a) omitting the words the solicitor or counsel, and substituting the words the lawyer:

    • (b) omitting the words by solicitor or counsel, and substituting the words by a lawyer.

43 New heading and sections 39 to 39B substituted
  • The principal Act is amended by repealing section 39, and substituting the following heading and sections:

    Appeals

    39 Procedure for bringing appeal to High Court
    • (1) A party to proceedings, or any other person prejudicially affected, may appeal to the High Court if a Family Court or District Court—

      • (a) makes an order; or

      • (b) refuses to make an order; or

      • (c) otherwise finally determines or dismisses the proceedings.

      (2) An appeal must be commenced—

      • (a) within 28 days after the making of the order or decision appealed against; or

      • (b) within any further time allowed by the High Court on an application made to it within 1 month after that period of 28 days expires.

      (3) An appeal must be brought in accordance with the following provisions of the District Courts Act 1947 (which apply with all necessary modifications):

      • (a) section 71:

      • (b) section 71A(2), (4), and (6):

      • (c) section 72:

      • (d) section 73(2), but the Court appealed from may, on the ex parte application of the appellant, order that security is not required to be given:

      • (e) section 73(3) and (4):

      • (f) section 74:

      • (g) section 75.

      (4) If the appeal relates to proceedings commenced after the death of 1 of the spouses or de facto partners, this section is modified by section 93.

    39A Procedure on appeal to High Court
    • Sections 76 to 78 of the District Courts Act 1947 apply, with all necessary modifications, to an appeal under section 39.

    39B Appeals to Court of Appeal and to Privy Council
    • (1) The provisions of the Judicature Act 1908 relating to appeals to the Court of Appeal against a decision of the High Court apply to an order or decision of the High Court under this Act.

      (2) An appeal may be made to the Privy Council against a decision of the Court of Appeal or of the High Court in proceedings, subject to the rules governing those appeals.

      (3) The High Court or the Court of Appeal may, if it thinks that the interests of justice so require,—

      • (a) rehear the whole or any part of the evidence; or

      • (b) receive further evidence.

44 New heading inserted
  • The principal Act is amended by inserting, immediately before section 40, the following heading:

    Costs.

45 New heading inserted
  • The principal Act is amended by inserting, immediately before section 41, the following heading:

    Registration of orders.

46 Registration of orders
  • Section 41(2)(b) of the principal Act is amended by omitting the expression subsections (4) and (6) of section 21 of this Act, and substituting the expression section 21F(2), (4), and (5).

47 Heading before section 42 amended
  • The principal Act is amended by inserting in the heading immediately before section 42, after the word spouses', the words or de facto partners'.

48 Notice of interest against title
  • (1) Section 42(2) of the principal Act is amended by omitting the words form set out in the First Schedule to this Act, and substituting the words prescribed form.

    (2) Section 42(3) of the principal Act is amended by—

    • (a) omitting from paragraph (a) the words either a District Court or the High Court, and substituting the words a Family Court or a District Court or the High Court:

    • (b) omitting from paragraph (b) the words District Court or the High Court, and substituting the words Family Court or a District Court or the High Court.

49 Dispositions may be restrained
  • (1) Section 43(1) of the principal Act is amended—

    • (a) by inserting, after the words any other person, the expression (party B):

    • (b) by omitting the words on the application of that second-named person and.

    (2) Section 43 of the principal Act is amended by inserting, after subsection (1), the following subsection:

    • (1A) The Court may make an order under this section on the application of party B, or (in any proceedings under this Act or otherwise) on its own initiative.

    (3) Section 43(2) of the principal Act is amended by omitting the word solicitor, and substituting the word lawyer.

50 Dispositions may be set aside
  • (1) Section 44(1) of the principal Act is amended—

    • (a) by inserting, after the words any person where they appear for the second time, the expression (party B):

    • (b) by omitting the words , on the application of that second-named person,.

    (2) Section 44 of the principal Act is amended by inserting, after subsection (1), the following subsection:

    • (1A) The Court may make an order under this section on the application of party B, or (in any proceedings under this Act or otherwise) on its own initiative.

    (3) Section 44(2) of the principal Act is amended by inserting in paragraphs (a), (b), and (c), in each case after the word his, the words or her.

    (4) Section 44(4) of the principal Act is amended by inserting, after the word his in both places where it occurs, the words or her.

51 New headings and sections 44A to 44F inserted
  • The principal Act is amended by inserting, after section 44, the following headings and sections:

    Orders relating to trusts

    44A Application of sections 44B and 44C
    • Sections 44B and 44C do not apply to a trust under a will or other testamentary disposition.

    44B Court may require party to disclose information about dispositions of property to trust
    • (1) In any proceedings for an order under section 25(1)(a), the Court may make an order requiring a spouse or de facto partner to disclose to the Court such information as the Court specifies relating to the disposition of relationship property by either or both spouses or de facto partners to a trust since the marriage or the de facto relationship began.

      (2) The Court may make an order under this section on the application of either party to the proceedings or on its own initiative.

    44C Compensation for property disposed of to trust
    • (1) This section applies if the Court is satisfied—

      • (a) that, since the marriage or the de facto relationship began, either or both spouses or de facto partners have disposed of relationship property to a trust; and

      • (b) that the disposition has the effect of defeating the claim or rights of 1 of the spouses or de facto partners; and

      • (c) that the disposition is not one to which section 44 applies.

      (2) If this section applies, the Court may make 1 or more of the following orders for the purpose of compensating the spouse or de facto partner whose claim or rights under this Act have been defeated by the disposition:

      • (a) an order requiring 1 spouse or de facto partner to pay to the other spouse or de facto partner a sum of money, whether out of relationship property or separate property:

      • (b) an order requiring 1 spouse or de facto partner to transfer to the other spouse or de facto partner any property, whether the property is relationship property or separate property:

      • (c) an order requiring the trustees of the trust to pay to 1 spouse or de facto partner the whole or part of the income of the trust, either for a specified period or until a specified amount has been paid.

      (3) The Court must not make an order under subsection (2)(c) if—

      • (a) an order under subsection (2)(a) or (b) would compensate the spouse or de facto partner; or

      • (b) a third person has in good faith altered that person's position—

        • (i) in reliance on the ability of the trustees to distribute the income of the trust in terms of the instrument creating the trust; and

        • (ii) in such a way that it would be unjust to make the order.

      (4) The Court may make 1 or more orders under subsection (2) if it considers it just to do so, having regard to—

      • (a) the value of the relationship property disposed of to the trust:

      • (b) the value of the relationship property available for division:

      • (c) the date or dates on which relationship property was disposed of to the trust:

      • (d) whether the trust gave consideration for the property, and if so, the amount of the consideration:

      • (e) whether the spouses or de facto partners or either of them, or any child of the marriage or child of the de facto relationship, is or has been a beneficiary of the trust:

      • (f) any other relevant matter.

    Orders relating to companies

    44D Definition of qualifying company
    • (1) In sections 44E and 44F, qualifying company means a company in which a controlling interest is held by, as the case requires,—

      • (a) 1 of the spouses or de facto partners; or

      • (b) the estate of the deceased spouse or de facto partner.

      (2) For the purposes of this section, a person holds a controlling interest in a company if that person holds (whether directly or indirectly) equity securities in that company that carry in the aggregate 50% or more of the voting rights at a general meeting of the company.

      (3) For the purposes of this section, a person holds equity securities in a company (company A) if—

      • (a) that person is beneficially entitled to, or is beneficially entitled to an interest in, any equity securities in that company (whether or not the whole or any part of the legal ownership of the equity securities is vested in that person); or

      • (b) that person holds a controlling interest in another company (company B) that holds equity securities in company A.

      (4) For the purposes of subsections (2) and (3), equity security has the same meaning as in section 2 of the Securities Act 1978.

    44E Court may require party to disclose information about dispositions of property to qualifying company
    • (1) In any proceedings for an order under section 25(1)(a), the Court may make an order requiring a spouse or de facto partner to disclose to the Court such information as the Court specifies relating to the disposition of relationship property by either or both spouses or de facto partners to a qualifying company since the marriage or the de facto relationship began.

      (2) The Court may make the order under this section on the application of either party to the proceedings or on its own initiative.

    44F Compensation for property disposed of to qualifying company
    • (1) This section applies if the Court is satisfied—

      • (a) that, since the marriage or the de facto relationship began, either or both spouses or de facto partners have disposed of relationship property to a qualifying company; and

      • (b) that the disposition has the effect of defeating the claim or rights of 1 of the spouses or de facto partners; and

      • (c) that the disposition is not one to which section 44 applies.

      (2) If this section applies, the Court may make 1 or more of the following orders for the purpose of compensating the spouse or de facto partner whose claim or rights under this Act have been defeated by the disposition:

      • (a) an order requiring 1 spouse or de facto partner to pay to the other spouse or de facto partner a sum of money, whether out of relationship property or separate property:

      • (b) an order requiring 1 spouse or de facto partner to transfer to the other spouse or de facto partner any property, whether the property is relationship property or separate property.

      (3) The Court may make 1 or more orders under subsection (2) if it considers it just to do so, having regard to—

      • (a) the value of the relationship property disposed of to the qualifying company:

      • (b) the value of the relationship property available for division:

      • (c) the date or dates on which relationship property was disposed of to the qualifying company:

      • (d) whether the company gave consideration for the property, and if so, the amount of the consideration:

      • (e) any other relevant matter..

    Family chattels not to be disposed of while proceedings pending.

52 Family chattels not to be disposed of
  • (1) Section 45(1) of the principal Act is amended—

    • (a) by inserting, after the words District Court Judge, the words or a Family Court Judge:

    • (b) by omitting the word matrimonial, and substituting the word family.

    (2) Section 45(2) of the principal Act is amended by omitting the expression $400, and substituting the expression $2,000.

53 Protection of mortgagee
  • Section 46 of the principal Act is amended by omitting the words the husband or wife, and substituting the words a spouse or de facto partner.

54 New section 47 substituted
  • The principal Act is amended by repealing section 47, and substituting the following section:

    47 Agreements to defeat creditors void
    • (1) Any agreement, disposition, or other transaction between spouses or de facto partners with respect to their relationship property and intended to defeat creditors of either spouse or de facto partner is void against those creditors and the Official Assignee.

      (2) Any such agreement, disposition, or other transaction that was not so intended but that has the effect of defeating such creditors is void against such creditors and the Official Assignee during the period of 2 years after it is made, but only to the extent that it has that effect.

      (3) For the purposes of subsection (2), an agreement between spouses or de facto partners with respect to their relationship property is deemed to have been made for valuable consideration if—

      • (a) a situation described in section 25(2) has arisen; and

      • (b) the agreement is made for the purpose of settling (wholly or in part) their rights under this Act with respect to that property.

      (4) Nothing in this section applies to any gift by 1 spouse or de facto partner to the other spouse or de facto partner, if the gift is made on a customary occasion and is reasonable in amount having regard to the donor's means and liabilities.

      (5) This section applies regardless of any other provision of this Act.

55 New heading substituted
  • The principal Act is amended by repealing the heading immediately before section 48, and substituting the following heading:

    Further miscellaneous provisions.

56 Incidence of orders against personal representative of spouse
  • Section 48 of the principal Act is repealed.

57 Proceedings in tort
  • Section 51(2) of the principal Act is amended by inserting, after the word marriage in both places where it occurs, the words or de facto relationship.

58 New sections 52A and 52B inserted
  • The principal Act is amended by inserting, after section 52, the following sections:

    52A Priority of claims where marriage and de facto relationship
    • (1) This section applies in respect of relationship property if—

      • (a) competing claims are made for property orders in respect of that property, 1 claim being in respect of a marriage and the other claim being in respect of a de facto relationship; and

      • (b) there is insufficient property to satisfy the property orders made under this Act.

      (2) If this section applies, the relationship property is to be divided as follows:

      • (a) if the marriage and the de facto relationship are successive (regardless of the order in which they occur), then in accordance with the chronological order of the marriage and the de facto relationship:

      • (b) if the marriage and the de facto relationship were at some time contemporaneous, then,—

        • (i) to the extent possible, the property order relating to the marriage must be satisfied from the property that is attributable to that marriage; and

        • (ii) to the extent possible, the property order relating to the de facto relationship must be satisfied from the property that is attributable to that de facto relationship; and

        • (iii) to the extent that it is not possible to attribute all or any of the property to either the marriage or the de facto relationship, the property is to be divided in accordance with the contribution of the marriage and the de facto relationship to the acquisition of the property.

      (3) For the purposes of this section, a marriage and a de facto relationship are successive if the de facto relationship begins during the marriage, but after the spouses cease to live together as husband and wife.

      (4) In this section, and in section 52B, property order

      • (a) means an order made under any of sections 25 to 31, and 33; and

      • (b) includes a declaration made under section 25(3).

    52B Priority of claims where 2 de facto relationships
    • (1) This section applies in respect of relationship property if—

      • (a) competing claims are made for property orders in respect of that property but in relation to different de facto relationships; and

      • (b) there is insufficient property to satisfy the property orders made under this Act.

      (2) If this section applies, the relationship property is to be divided as follows:

      • (a) if the de facto relationships are successive, then in accordance with the chronological order of the de facto relationships:

      • (b) if the de facto relationships were at some time contemporaneous, then,—

        • (i) to the extent possible, the property orders must be satisfied from the property that is attributable to each de facto relationship; and

        • (ii) to the extent that it is not possible to attribute all or any of the property to either de facto relationship, the property is to be divided in accordance with the contribution of each de facto relationship to the acquisition of the property.

59 Rules of Court and regulations
  • (1) Section 53(2A)(a) of the principal Act is amended by omitting the words solicitors or counsel appointed under subsection (2) of section 26 of this Act, and substituting the words lawyers appointed under section 37A.

    (2) Section 53(2A) of the principal Act is amended by inserting, after paragraph (b), the following paragraph:

    • (ba) requiring the personal representative of a deceased spouse or de facto partner to provide the surviving spouse or de facto partner with information about the estate of the deceased spouse or de facto partner; and providing for the enforcement of any such requirement (including, without limitation, providing for the Court, on the application of the surviving spouse or de facto partner, to order the personal representative to provide all or any of the relevant information):.

60 New section 53A inserted
  • The principal Act is amended by inserting, after section 53, the following section:

    53A Power to prescribe specified sum
    • (1) The Governor-General may from time to time, by Order in Council, prescribe the amount that is the specified sum for the purposes of section 20B.

      (2) Until a different amount is prescribed under this section, the specified sum is $82,000.

61 New Parts 8 and 9 substituted
  • The principal Act is amended by repealing sections 55 to 57, and substituting the following Parts:

    Part 8
    Division of property where 1 spouse or de facto partner dies

    Application of this Part

    55 Application of this Part
    • (1) This Part applies where—

      • (a) a marriage has ended when 1 of the spouses dies; or

      • (b) a de facto relationship has ended when 1 of the de facto partners dies.

      (2) This Part also applies if,—

      • (a) after a marriage has ended by separation or dissolution, 1 of the spouses dies, and no proceedings under Part 7 are commenced before the spouse's death; or

      • (b) after a de facto relationship has ended (other than by the death of 1 of the de facto partners), 1 of the de facto partners dies, and no proceedings under Part 7 are commenced before the de facto partner's death.

    56 Application to existing and future wills
    • In the application of this Act to a spouse or de facto partner who dies on or after 1 February 2002 and who has made a will, it does not matter whether the will was made before, on, or after that date.

    57 Application under Law Reform (Testamentary Promises) Act 1949 or Family Protection Act 1955 not precluded
    • Nothing in this Act prevents a person from making an application under the Law Reform (Testamentary Promises) Act 1949 or the Family Protection Act 1955 in respect of the estate of his or her deceased spouse or de facto partner.

    Death of spouse or de facto partner

    Insolvent deceased spouse or de facto partner

    58 Rights of creditors preserved
    • (1) If, had this Act not been passed, any property would have become vested in an appointee (within the meaning of section 153 of the Insolvency Act 1967) on an order being made under section 157 of that Act to administer the estate of a deceased spouse or de facto partner under Part XVII of that Act, then that property (and no other property) becomes vested in an appointee as if this Act had not been passed.

      (2) If, had this Act not been passed, any property that is included in the estate of a deceased spouse or de facto partner could have been dealt with in accordance with section 31 of the Administration Act 1969, then that property (and no other property) may be dealt with under that section as if this Act had not been passed.

    59 Payment of protected interest where estate insolvent
    • (1) This section applies in the following cases:

      • (a) if, after the death of a spouse or de facto partner, the family home (including a homestead) or, if section 11A applies, the proceeds of the sale of the family home vest in an appointee (within the meaning of section 153 of the Insolvency Act 1967) on an order being made under section 157 of that Act to administer the estate of a deceased spouse or de facto partner under Part XVII of that Act:

      • (b) if, after the death of a spouse or de facto partner, the family home (including a homestead) or, if section 11A applies, the proceeds of the sale of the family home may be dealt with in accordance with section 31 of the Administration Act 1969.

      (2) If this section applies, the appointee (in any case where subsection (1)(a) applies) or the administrator of the estate of the deceased spouse or de facto partner (in any case where subsection (1)(b) applies) must pay to the surviving spouse or de facto partner the lesser of—

      • (a) the amount of the protected interest of the surviving spouse or de facto partner; or

      • (b) so much of that amount as remains after the appointee or, as the case requires, the administrator has paid the debts specified in subsection (3).

      (3) The debts referred to in subsection (2)(b) are as follows:

      • (a) any debts secured on the family home or homestead or, as the case may be, the proceeds of sale of the family home:

      • (b) any unsecured debt incurred—

        • (i) by the spouses or de facto partners jointly; or

        • (ii) by the deceased spouse or de facto partner, for the purpose of acquiring, improving, or repairing the family home.

      (4) If, in any case to which this section applies, section 11B applies, the appointee or, as the case requires, the administrator must pay to the surviving spouse or de facto partner such amount in satisfaction of the protected interest of that spouse or de facto partner as the Court may direct, on application by the appointee or the administrator (as the case requires) or on application by the surviving spouse or de facto partner.

    Proceedings commenced while both spouses or de facto partners alive

    60 Incidence of orders against personal representative of spouse or de facto partner
    • (1) This section applies when—

      • (a) proceedings are commenced while both spouses or de facto partners are alive; and

      • (b) 1 spouse or de facto partner dies before the proceedings are completed; and

      • (c) the Court makes an order under this Act against the personal representative of the deceased spouse or de facto partner.

      (2) The incidence of any order made under this Act by the Court against the personal representative of a deceased spouse or de facto partner falls rateably upon such part of the estate of the deceased as consists of relationship property.

      (3) However, the Court may order that the incidence of the order—

      • (a) falls rateably on the whole estate of the deceased; or

      • (b) falls on any specified portion of the estate or on any specified property.

      (4) Where the Court makes any order under subsection (3),—

      • (a) the Court has power to exonerate any part of the estate of the deceased from the incidence of the order made under this Act, after hearing such of the parties who may be affected by the exoneration as the Court thinks necessary, and may for that purpose direct any personal representative to represent, or appoint any person to represent, any such party:

      • (b) the Court has power at any time to fix a periodical payment or lump sum to be paid by any beneficiary in the estate of the deceased to represent, or in commutation of, any liability under the order that falls upon the portion of the estate in which he or she is interested, and to exonerate that portion from further liability and to direct in what manner the payment is to be secured.

      (5) For the purposes of subsections (2) to (4), in cases where the authority of the Court does not extend and cannot directly or indirectly be made to extend to the whole estate, the estate of the deceased includes only so much of it as is subject to the authority of the Court.

      (6) Where the Court makes any order under this Act against the personal representative of a deceased spouse or de facto partner (other than an order made under section 27 or section 28), the property comprised in that order does not form part of the estate of the deceased for the purposes of the Law Reform (Testamentary Promises) Act 1949 or of the Family Protection Act 1955.

      (7) In proceedings commenced after the death of 1 of the spouses or de facto partners, section 94 applies instead of this section.

    Surviving spouse or de facto partner may choose between division under this Act and taking under will or intestacy

    61 Surviving spouse or de facto partner may choose option
    • (1) If 1 of the spouses or de facto partners has died (except in a situation described in section 10D(1)), the surviving spouse or de facto partner may choose option A or option B.

      (2) Option A is to elect to make an application under this Act for a division of relationship property.

      (3) Option B is as follows:

      • (a) to elect not to make an application under this Act for a division of the relationship property; and

      • (b) if the surviving spouse or de facto partner is a beneficiary under the will of the deceased spouse or de facto partner, to receive that property; and

      • (c) if the surviving spouse or de facto partner is entitled to a beneficial interest on the intestacy or partial intestacy of the deceased spouse or de facto partner, to receive that interest.

    62 Time limit for making choice
    • (1) A surviving spouse or de facto partner who wishes to choose option A or option B must make that choice within the following time limits:

      • (a) if the estate of the deceased spouse or de facto partner is a small estate (as defined in section 2), the choice must be made—

        • (i) no later than 6 months after the date of the death of the deceased spouse or de facto partner; or

        • (ii) if administration of the estate is granted in New Zealand within that period, no later than 6 months after the grant of administration,—

        whichever is the later:

      • (b) in any other case, the choice must be made no later than 6 months after administration of the estate of the deceased spouse or de facto partner is granted in New Zealand.

      (2) Regardless of subsection (1), but subject to subsection (4), the Court may extend the time for making that choice after hearing—

      • (a) the applicant; and

      • (b) any other persons who the Court considers should be heard.

      (3) The Court's power under this section extends to cases where the time for making the choice has already expired, including cases where it expired before the commencement, on 1 February 2002, of the Property (Relationships) Amendment Act 2001.

      (4) The Court may not grant an extension of time under subsection (2) unless the application for the extension is made before the final distribution of the estate of the deceased spouse or de facto partner.

    63 Surviving spouse or de facto partner may not commence proceedings before making election
    • A surviving spouse or de facto partner may not apply under this Act for a division of the relationship property unless—

      • (a) the surviving spouse or de facto partner has first chosen option A; or

      • (b) in the case of a surviving spouse, section 64 applies.

    64 Position of surviving spouse if separation order made or marriage dissolved
    • A surviving spouse may apply under this Act for a division of the relationship property without having first chosen option A if he or she is in 1 of the following situations:

      • (a) a separation order is in force in relation to the marriage and the deceased spouse dies intestate:

      • (b) the marriage was ended while both spouses were alive by a legal process that occurred within or outside New Zealand.

    65 How choice to be made
    • (1) A surviving spouse or de facto partner who wishes to choose option A or option B must complete and sign a written notice indicating that choice.

      (2) The notice—

      • (a) must be in the prescribed form; and

      • (b) must include or be accompanied by a certificate—

        • (i) signed by a lawyer; and

        • (ii) certifying that the lawyer has explained to the surviving spouse or de facto partner the effect and implications of the notice; and

      • (c) must be lodged—

        • (i) with the administrator of the estate of the deceased spouse or de facto partner; or

        • (ii) if administration of that estate has not been granted in New Zealand, in the registry of the High Court in which an application for a grant of administration of that estate would, under the High Court Rules, be required to be filed.

      (3) A notice given under subsection (2) by a minor has effect as if the minor were of full age.

      (4) A choice of option is effective when a notice indicating the choice is lodged in accordance with subsection (2)(c).

    66 Choice of option to be notified to certain persons
    • (1) If a notice is lodged in accordance with section 65(2)(c)(ii), the surviving spouse or de facto partner (the survivor) must, without delay, give a copy or copies of the notice in accordance with subsections (2) to (4).

      (2) If, at the time of his or her death, the deceased spouse or de facto partner was the registered holder of any Government stock or local authorities stock (as those terms are defined in section 64(2) of the Administration Act 1969) to which that section applies, the survivor must give a copy of the notice to—

      • (a) the registrar of that stock (if paragraph (b) does not apply); or

      • (b) any person who has been registered as the holder of that stock in reliance on that section.

      (3) If, at the time of his or her death, the deceased spouse or de facto partner was the registered holder of shares or debentures to which section 64A of the Administration Act 1969 applies, the survivor must give a copy of the notice to—

      • (a) the directors of the company that issued the shares or debentures (if paragraph (b) does not apply); or

      • (b) any person who has been registered as the holder of those shares or debentures in reliance on that section.

      (4) If the death of the deceased spouse or de facto partner means that any sum of money may be paid, under section 65 of the Administration Act 1969, by any person, the survivor must give a copy of the notice to—

      • (a) the person authorised under that section to make payment of that sum (if paragraph (b) does not apply); or

      • (b) any person to whom that sum or part of that sum has been paid in reliance on that section (other than subsection (3)).

    67 Choice irrevocable
    • (1) Once a surviving spouse or de facto partner has chosen option A or option B, that choice cannot be revoked.

      (2) This section is subject to the Court's power under section 69 to set aside a choice of option.

    68 Effect of failure to make choice
    • (1) If a surviving spouse or de facto partner does not choose option A or option B, in the manner required by section 65 and within the time required by section 62(1) (or any extension of that time granted under section 62(2)), then the surviving spouse or de facto partner is to be treated as having chosen option B.

      (2) The Court may, under section 69, set aside a choice of option imposed by this section.

    69 Chosen option may be set aside
    • (1) If a surviving spouse or de facto partner has chosen option A or option B, the Court, on application by that spouse or de facto partner, may set that choice aside.

      (2) The Court may set aside a choice of option only if—

      • (a) it is satisfied that any of the following apply:

        • (i) that the choice of option was not freely made:

        • (ii) that the surviving spouse or de facto partner did not fully understand the effect and implications of the choice:

        • (iii) that since the choice of option was made, the surviving spouse or de facto partner has become aware of information relevant to the making of a choice of option:

        • (iv) that since the choice of option was made, a person (other than the surviving spouse or de facto partner) has made an application under the Law Reform (Testamentary Promises) Act 1949 or the Family Protection Act 1955 in respect of the estate of the deceased spouse or de facto partner; and

      • (b) having regard to all the circumstances, it is satisfied that it would be unjust to enforce the choice of option.

      (3) In deciding whether or not to set aside a choice of option, the Court must have regard to the following matters:

      • (a) the circumstances in which the choice of option was made:

      • (b) the length of time since the choice was made:

      • (c) any other matters that the Court considers relevant.

    70 Choice may not be set aside if estate finally distributed
    • The Court may not set aside a choice of option under section 69 unless the application under that section is made before the final distribution of the estate of the deceased spouse or de facto partner.

    Distribution of estates

    71 Distribution of estate before choice made
    • (1) The administrator or trustee of the estate of a deceased spouse or de facto partner must not distribute any part of that estate before—

      • (a) the expiry of 6 months after administration of that estate is granted in New Zealand; or

      • (b) the surviving spouse or de facto partner chooses option A or option B,—

      whichever happens first.

      (2) Despite subsection (1), a distribution may be made in the following cases:

      • (a) where section 47(2) of the Administration Act 1969 applies to the distribution:

      • (b) where the surviving spouse or de facto partner consents in writing to the distribution:

      • (c) where the Court, on application made to it for the purpose, approves the distribution.

    72 Distribution of estate after choice made but before proceedings commenced
    • (1) If a surviving spouse or de facto partner chooses option A, the administrator or trustee of the estate of the deceased spouse or de facto partner must not distribute any part of the estate before—

      • (a) the surviving spouse or de facto partner applies for a division of relationship property under this Act; or

      • (b) the expiry of the period specified in section 62(1) (or any extension of that period granted under section 62(2)),—

      whichever happens first.

      (2) Despite subsection (1), a distribution may be made in any of the cases referred to in section 71(2).

    73 Distribution of estate while proceedings pending
    • (1) The administrator or trustee of the estate of a deceased spouse or de facto partner must not distribute any part of that estate while proceedings are pending in respect of that estate.

      (2) Despite subsection (1), a distribution may be made in any of the cases referred to in section 71(2).

      (3) For the purposes of this section, proceedings are pending—

      • (a) from the date on which the proceedings are commenced until—

        • (i) the proceedings are finally determined; or

        • (ii) the proceedings are withdrawn,—

      whichever happens first; and

      • (b) on and from the date on which the proceedings are finally determined until—

        • (i) the time for appealing against the decision of the Court expires, if no such appeal has been commenced; or

        • (ii) if an appeal against the decision of the Court is commenced, when the appeal is finally determined or is withdrawn, whichever occurs first; and

      • (c) while any further right of appeal (whether to the Court of Appeal or to the Privy Council) subsists in relation to the proceedings, or while any such further appeal awaits determination.

    74 Distribution of estate not to be disturbed
    • (1) This section applies where any part of the estate of a deceased spouse or de facto partner has been distributed—

      • (a) before the personal representative of that spouse or de facto partner receives notice that an application has been made to the Court—

        • (i) under section 62(2) for an extension of the time for choosing option A or option B; or

        • (ii) under section 69 for the setting aside of a choice of option A or option B; or

        • (iii) under section 77 for an order that a surviving spouse or de facto partner who has chosen option A may also take under the will of the deceased spouse or de facto partner or on his or her intestacy or partial intestacy; or

        • (iv) under section 89(2) or section 90(2) for an extension of the time for making an application; and

      • (b) after every notice (if any) of an intention to make an application has lapsed in accordance with section 48(1) of the Administration Act 1969.

      (2) Where this section applies,—

      • (a) the making of the application does not disturb the distribution; and

      • (b) no order made in respect of the application may disturb the distribution; and

      • (c) no action lies against the personal representative for having made the distribution.

    Effect of choice of division under this Act (option A)

    75 Effect on application of Act of choice of division under this Act
    • If the surviving spouse or de facto partner chooses option A,—

      • (a) sections 76 to 78 apply to the proceedings; and

      • (b) sections 2 to 53A apply to the proceedings, but some of the sections are modified or affected by sections 79 to 94.

    76 Effect on will or intestacy of choice of division under this Act
    • (1) Unless the will (if any) of the deceased spouse or de facto partner expresses a contrary intention,—

      • (a) every gift to the surviving spouse or de facto partner in the will of the deceased spouse or de facto partner (if any) is to be treated (for all purposes) as having been revoked; and

      • (b) the will of the deceased spouse or de facto partner (if any) is to be interpreted as if the surviving spouse or de facto partner had died before the deceased spouse or de facto partner; and

      • (c) the estate of the deceased spouse or de facto partner must be distributed accordingly.

      (2) The reference in subsection (1)(a) to gifts to the surviving spouse or de facto partner in the will of the deceased spouse or de facto partner includes the whole of the interest of the surviving spouse or de facto partner as a beneficiary in any real or personal property to which the surviving spouse or de facto partner would otherwise be entitled under the will of the deceased spouse or de facto partner.

      (3) The surviving spouse or de facto partner has no entitlement under Part III of the Administration Act 1969.

      (4) This section is subject to section 77.

    77 Court may permit surviving spouse or de facto partner to take under will or on intestacy
    • (1) Despite section 76, if the Court is satisfied that it is necessary to avoid injustice, the Court may, on the application of a surviving spouse or de facto partner who has chosen option A,—

      • (a) order that the surviving spouse or de facto partner may also receive all or any of the gifts to the surviving spouse or de facto partner in the will of the deceased spouse or de facto partner, as the Court thinks fit:

      • (b) order that the surviving spouse or de facto partner may also receive all or part of the beneficial interest to which the surviving spouse or de facto partner is entitled on the intestacy or partial intestacy of the deceased spouse or de facto partner, as the Court thinks fit.

      (2) If the Court makes an order under this section, the estate of the deceased spouse or de facto partner must be distributed accordingly.

      (3) The Court may not make an order under this section unless the application under this section is made before the final distribution of the estate of the deceased spouse or de facto partner.

    78 Priority of entitlement of surviving spouse or de facto partner
    • (1) The entitlement of a surviving spouse or de facto partner to any property or payment under an order or agreement made under this Act has priority over—

      • (a) any beneficial interest to which any person is entitled under the will (if any) of the deceased spouse or de facto partner; and

      • (b) any beneficial interest to which any person is entitled on the intestacy or partial intestacy of the deceased spouse or de facto partner; and

      • (c) any order made in respect of the estate of the deceased spouse or de facto partner under the Family Protection Act 1955 or the Law Reform (Testamentary Promises) Act 1949; and

      • (d) all duties and fees payable in respect of the estate of the deceased spouse or de facto partner under any Act imposing or charging duties or fees on the estate of the deceased person.

      (2) Despite subsection (1), the following have priority over the entitlement of a surviving spouse or de facto partner under this Act to any property or payment:

      • (a) all debts properly incurred by the personal representative of the deceased spouse or de facto partner in the ordinary course of administration of the estate of the deceased spouse or de facto partner:

      • (b) the reasonable funeral expenses of the deceased spouse or de facto partner.

    Sections modifying or affecting earlier sections in proceedings commenced after death of spouse or de facto partner

    79 Date at which shares determined
    • (1) For the purposes of this Act, the share of a spouse or de facto partner in the relationship property is to be determined as at the following date:

      • (a) if the marriage or de facto relationship ends while both spouses or de facto partners are alive, the date on which the marriage or de facto relationship ends:

      • (b) if the marriage or de facto relationship does not end while both spouses or de facto partners are alive, the date of the death of the deceased spouse or de facto partner.

      (2) This section is subject to Part 6 and section 87.

    80 Classification of property
    • (1) This section applies where the classification of any property as relationship property or as any particular type of relationship property depends on the use to which it has been put.

      (2) Where this section applies, that classification is to be determined,—

      • (a) if the marriage or de facto relationship ends while both spouses or de facto partners are alive, by the use to which they put the property while they lived together:

      • (b) if the marriage or de facto relationship does not end while both spouses or de facto partners are alive, by the use to which they were putting the property at the date of the death of the deceased spouse or de facto partner.

    81 Presumption that property of deceased spouse or de facto partner is relationship property
    • (1) All the property that was owned by the deceased spouse or de facto partner at his or her death is presumed, in the absence of evidence to the contrary, to be relationship property.

      (2) A person who asserts that any property to which the presumption in subsection (1) applies is not relationship property has the burden of proving that assertion.

      (3) This section is subject to Part 6 and section 87.

      (4) Nothing in this section applies to property to which section 10(2) applies.

    82 Presumption that property acquired by estate of deceased spouse or de facto partner is relationship property
    • (1) Property acquired by the estate of the deceased spouse or de facto partner, and the proceeds of a disposition of such property, and property acquired out of such property is presumed, in the absence of evidence to the contrary, to be relationship property.

      (2) A person who asserts that any property to which the presumption in subsection (1) applies is not relationship property has the burden of proving that assertion.

      (3) This section is subject to Part 6 and section 87.

      (4) Nothing in this section applies to property to which section 10(2) applies.

    83 Relationship property defined
    • (1) If, on the death of a spouse or de facto partner, any property of that spouse or de facto partner passes to the surviving spouse or de facto partner, whether by survivorship or otherwise (but not by succession), then unless, in any proceedings under this Act, the Court decides otherwise,—

      • (a) that property is not automatically to be treated as the separate property of the surviving spouse or de facto partner; and

      • (b) the status of the property as relationship property or separate property is to be determined according to the status it would have had if the deceased spouse or de facto partner had not died.

      (2) This section is subject to Part 6 and section 87.

    84 Separate property defined
    • All property acquired by the surviving spouse or de facto partner after the death of the deceased spouse or de facto partner is separate property unless the Court considers that it is just in the circumstances to treat the property or any part of it as relationship property.

    85 Marriages and de facto relationships of short duration
    • (1) If a marriage was a relationship of short duration (as defined in section 2E), the share of the surviving spouse in the relationship property is determined in accordance with sections 11 to 13.

      (2) Section 14 applies to a marriage to which subsection (1) applies only if the Court, having regard to all the circumstances of the marriage, considers that the application of sections 11 to 12 would be unjust.

      (3) If a de facto relationship is a relationship of short duration (as defined in section 2E), the Court cannot make an order under this Act for the division of relationship property unless—

      • (a) the Court is satisfied—

        • (i) that there is a child of the de facto relationship; or

        • (ii) that the surviving de facto partner or, on an application made by the deceased de facto partner's personal representative, the deceased de facto partner has made a substantial contribution to the de facto relationship; and

      • (b) the Court is satisfied that failure to make the order would result in serious injustice.

      (4) If subsection (3) applies, and the Court is satisfied that the grounds specified in that subsection for making an order on an application made under this Act are made out, the share of the surviving de facto partner and of the deceased de facto partner's estate in the relationship property is to be determined in accordance with the contribution of each de facto partner to the de facto relationship.

    86 Compensation for actions after separation or death
    • (1) If this Part applies, then for the purposes of sections 18B and 18C, relevant period means,—

      • (a) if the spouses or de facto partners cease to live together while both are alive, the period after they cease to live together but before the date of the hearing of an application under this Act by the Court of first instance:

      • (b) if the spouses or de facto partners do not cease to live together while both are alive, the period after the death of the deceased spouse or de facto partner but before the date of the hearing of an application under this Act by the Court of first instance.

      (2) The Court may exercise the power in section 18B(2) if, during the relevant period, 1 of the spouses or de facto partners or the personal representative of the deceased spouse or de facto partner has done anything that would have been a contribution to the marriage or de facto relationship if the spouses or de facto partners had not ceased to live together or if 1 of them had not died.

      (3) The Court may exercise the power in section 18C(2) if, during the relevant period, the relationship property has been materially diminished in value by the deliberate action or inaction of—

      • (a) the personal representative of the deceased spouse or de facto partner; or

      • (b) the surviving spouse or de facto partner.

    87 Surviving spouse or de facto partner may challenge agreement
    • (1) This section applies if—

      • (a) the spouses or de facto partners make an agreement under section 21 defining the share of the relationship property or any part of it that each is entitled to on the death of 1 of them; and

      • (b) 1 of them dies.

      (2) If this section applies,—

      • (a) the surviving spouse or de facto partner may apply to the Court—

        • (i) to have the agreement declared void for non-compliance with a requirement of section 21F:

        • (ii) to have the agreement set aside under section 21J; and

      • (b) the surviving spouse or de facto partner may make the application either before or after exercising the option in section 61.

      (3) In deciding, under section 21J, whether giving effect to an agreement to which this section applies would cause serious injustice, the Court must have regard, in addition to all other relevant circumstances, to whether the estate of the deceased spouse or de facto partner has been wholly or partly distributed.

      (4) This section is subject to section 47.

    88 Who can apply
    • (1) The following persons may apply for an order under section 25(1)(a) or (b) or an order or declaration under section 25(3):

      • (a) the surviving spouse or de facto partner:

      • (b) any person on whom conflicting claims in respect of property are made by the surviving spouse or de facto partner and the personal representative of the deceased spouse or de facto partner.

      (2) The personal representative of the deceased spouse or de facto partner may, with the leave of the Court, apply for an order under section 25(1)(a). The Court may grant leave only if it is satisfied that refusing leave would cause serious injustice.

      (3) The following persons may apply for an order under section 25(1)(b) or an order or declaration under section 25(3):

      • (a) the personal representative of the deceased spouse or de facto partner:

      • (b) the Official Assignee in Bankruptcy of the property of either spouse or de facto partner:

      • (c) an appointee (within the meaning of section 153 of the Insolvency Act 1967) in whom the estate of a deceased spouse or de facto partner vests on an order being made under section 157 of that Act.

    89 Time for commencement of proceedings
    • (1) Proceedings may be commenced after the death of 1 of the spouses or de facto partners if,—

      • (a) at the date of the death of the deceased spouse or de facto partner, the spouses or de facto partners are living together; or

      • (b) in the case of de facto partners, at the date of the death of the deceased de facto partner, the de facto partners are not living together; or

      • (c) in the case of spouses, at the date of the death of the deceased spouse the following circumstances exist:

        • (i) the spouses are not living together; and

        • (ii) the marriage has not been dissolved by an order dissolving the marriage, and an order has not been made declaring the marriage to be void ab initio; or

      • (d) in the case of spouses, at the date of the death of the deceased spouse the following circumstances exist:

        • (i) the spouses are not living together; and

        • (ii) the marriage has been dissolved by an order dissolving the marriage, or an order declaring the marriage to be void ab initio has been made; and

        • (iii) not more than 12 months have elapsed since the taking effect as a final order of the order dissolving the marriage or the date of the making of the order declaring the marriage to be void ab initio; or

      • (e) in the case of spouses, at the date of the death of the deceased spouse the following circumstances exist:

        • (i) the spouses are not living together; and

        • (ii) the marriage has been dissolved by an order dissolving the marriage, or an order declaring the marriage to be void ab initio has been made; and

        • (iii) more than 12 months have elapsed since the taking effect as a final order of the order dissolving the marriage or the date of the making of the order declaring the marriage to be void ab initio, but, either before or after the deceased spouse's death, the Court grants an extension under section 24(2).

      (2) The Court's power to grant an extension under section 24(2) extends to cases where the time for making an application expired before the commencement, on 1 February 2002, of the Property (Relationships) Amendment Act 2001.

    90 Time limits for commencing proceedings
    • (1) Proceedings must be commenced within the following time limits:

      • (a) if the estate of the deceased spouse or de facto partner is a small estate (as defined in section 2), the proceedings must be commenced—

        • (i) no later than 12 months after the date of the death of the deceased spouse or de facto partner; or

        • (ii) if administration of the estate is granted in New Zealand within that period, no later than 12 months after the grant of administration,—

        whichever is the later:

      • (b) in any other case, the proceedings must be commenced no later than 12 months after administration of the estate of the deceased spouse or de facto partner is granted in New Zealand.

      (2) Regardless of subsection (1), but subject to subsection (3), the Court may extend the time for commencing proceedings after hearing—

      • (a) the applicant; and

      • (b) any other persons who have an interest in the property that would be affected by the order sought and who the Court considers should be heard.

      (3) The Court's power under this section extends to cases where the time for commencing proceedings has already expired, including cases where it expired before the commencement, on 1 February 2002, of the Property (Relationships) Amendment Act 2001.

      (4) The Court may not grant an extension of time under subsection (2) unless the application for the extension is made before the final distribution of the estate of the deceased spouse or de facto partner.

    91 Qualifications on application of sections 25 to 34 and 43 to 44F
    • (1) The Court must not make an order in proceedings commenced after the death of 1 of the spouses or de facto partners unless it is satisfied that 1 of the spouses or de facto partners has died.

      (2) When the Court makes an order under section 27(1), the surviving spouse or de facto partner is entitled personally to occupy the family home or other premises to which the order relates, to the exclusion of any other person who would otherwise be entitled to occupy the family home or those premises.

      (3) The Court may not make an order under section 28 in favour of a surviving spouse or de facto partner unless,—

      • (a) at the time of the making of the order, the tenancy of the dwellinghouse is vested in the personal representative of the deceased spouse or de facto partner; and

      • (b) either—

        • (i) at the time of the making of the order, the surviving spouse or de facto partner is residing in the dwellinghouse; or

        • (ii) at the date of the death of the deceased spouse or de facto partner, the deceased spouse or de facto partner was the sole tenant of the dwellinghouse, or was a tenant in common with the surviving spouse or de facto partner.

    92 Persons entitled to be heard
    • In section 37(1), any person having an interest in the property which would be affected by the order does not include a person who has an interest only as a beneficiary of, or claimant against, the estate of the deceased spouse or de facto partner, but the Court may hear such a person if it considers it necessary to do so.

    93 Appeals
    • In section 39(1), any other person prejudicially affected does not include a person who is affected only as a beneficiary of, or claimant against, the estate of the deceased spouse or de facto partner.

    94 Incidence of orders against personal representative of spouse or de facto partner
    • (1) This section applies when—

      • (a) proceedings are commenced after the death of 1 of the spouses or de facto partners; and

      • (b) the Court makes an order under this Act against the personal representative of the deceased spouse or de facto partner.

      (2) The incidence of any order made under this Act by the Court against the personal representative of a deceased spouse or de facto partner falls rateably upon such part of the estate of the deceased as consists of relationship property.

      (3) However, the Court may order that the incidence of the order—

      • (a) falls rateably on the whole estate of the deceased; or

      • (b) falls on any specified portion of the estate or on any specified property.

      (4) Where the Court makes any order under subsection (3),—

      • (a) the Court has power to exonerate any part of the estate of the deceased from the incidence of the order made under this Act, after hearing such of the parties who may be affected by the exoneration as the Court thinks necessary, and may for that purpose direct any personal representative to represent, or appoint any person to represent, any such party:

      • (b) the Court has power at any time to fix a periodical payment or lump sum to be paid by any beneficiary in the estate of the deceased to represent, or in commutation of, any liability under the order that falls upon the portion of the estate in which he or she is interested, and to exonerate that portion from further liability and to direct in what manner the payment is to be secured.

      (5) For the purposes of subsections (2) to (4), in cases where the authority of the Court does not extend and cannot directly or indirectly be made to extend to the whole estate, the estate of the deceased includes only so much of it as is subject to the authority of the Court.

      (6) Where the Court makes any order under this Act against the personal representative of a deceased spouse or de facto partner (other than an order made under section 27 or section 28), the property comprised in that order does not form part of the estate of the deceased for the purposes of the Law Reform (Testamentary Promises) Act 1949 or the Family Protection Act 1955.

    Effect of choice of will or intestacy (option B)

    95 Effect on application of Act of choice of will or intestacy
    • (1) If the surviving spouse or de facto partner chooses option B, nothing in this Act (other than sections 20 to 20F or sections 58 and 59) applies to the distribution of property under the will of the deceased spouse or de facto partner or under Part III of the Administration Act 1969.

      (2) To avoid any doubt, the fact that a surviving spouse or de facto partner chooses, or is treated as having chosen, option B does not prevent that person from disclaiming any interest as a beneficiary in any real or personal property to which he or she is entitled under the will of the deceased spouse or de facto partner or under Part III of the Administration Act 1969.

    Part 9
    Transitional provisions and savings

    Transitional provisions

    96 Transitional provisions applying on and from 1 February 1977
    • (1) If an application relates to the relationship property of a marriage that took place before 1 February 1977, the Court must, in dealing with the application, have regard to any agreement entered into before 1 February 1977 by the parties to the marriage. This subsection applies despite Part 6, but is subject to section 98(3).

      (2) If—

      • (a) proceedings were commenced under the Matrimonial Property Act 1963 or Part VIII of the Matrimonial Proceedings Act 1963 before 1 February 1977; and

      • (b) the hearing of the proceedings commenced before 1 February 1977,—

      the proceedings continue as if this Act had not been passed, unless the parties agree to the proceedings continuing under this Act.

      (3) If—

      • (a) proceedings were commenced under the Matrimonial Property Act 1963 or Part VIII of the Matrimonial Proceedings Act 1963 before 1 February 1977; and

      • (b) the hearing of the proceedings had not commenced before 1 February 1977,—

      the proceedings continue under this Act.

      (4) Proceedings commenced before 1 February 1977 that are continued under this Act are continued as if the Property (Relationships) Amendment Act 2001 had not been passed.

    97 Transitional provisions applying on and from 1 February 2002
    • (1) If—

      • (a) proceedings were commenced on or after 1 February 1977 and before 1 February 2002; and

      • (b) the hearing of the proceedings commenced before 1 February 2002,—

      the proceedings continue as if the Property (Relationships) Amendment Act 2001 had not been passed, unless the parties agree to the proceedings being continued under this Act as amended by the Property (Relationships) Amendment Act 2001.

      (2) If—

      • (a) proceedings were commenced on or after 1 February 1977 and before 1 February 2002; and

      • (b) the hearing of the proceedings had not commenced before 1 February 2002,—

      the proceedings continue under this Act as amended by the Property (Relationships) Amendment Act 2001.

      (3) If proceedings were commenced under the Matrimonial Property Act 1963 on or after 1 February 1977 and before 1 February 2002 by—

      • (a) the surviving spouse against the deceased spouse's personal representative; or

      • (b) the deceased spouse's personal representative against the surviving spouse; or

      • (c) the personal representative of 1 spouse against the personal representative of the other spouse,—

      the proceedings continue as if this Act had not repealed the Matrimonial Property Act 1963, whether or not the hearing of the proceedings commenced before 1 February 2002.

      (4) If, before 1 February 2002,—

      • (a) proceedings were commenced while both spouses were alive; and

      • (b) the hearing of the proceedings did not commence; and

      • (c) 1 spouse dies or both spouses die,—

      the proceedings continue under this Act, except sections 61 to 95, as amended by the Property (Relationships) Amendment Act 2001, as if the spouse or spouses had not died.

      (5) If, before 1 February 2002,—

      • (a) proceedings were commenced while both spouses were alive; and

      • (b) the hearing of the proceedings commenced; and

      • (c) 1 spouse dies or both spouses die,—

      the proceedings continue under this Act, as if this Act had not been amended by the Property (Relationships) Amendment Act 2001, and as if the spouse or spouses had not died.

      (6) If proceedings were commenced in the High Court before 1 February 2002, the proceedings continue in that Court, whether or not the hearing of the proceedings commenced before 1 February 2002.

    Savings

    98 Savings applying on and from 1 February 1977
    • (1) Nothing in this Act affects any order made before 1 February 1977 under section 41 or section 44 of the Matrimonial Proceedings Act 1963, and the provisions of that Act have effect in relation to any such order as if this Act had not been passed.

      (2) Nothing in this Act invalidates any payment made or any act or thing done in good faith before 1 February 1977 by the personal representative of a deceased spouse.

      (3) Nothing in this Act affects the validity of any agreement entered into before 1 February 1977 by way of settlement of any question that has arisen in relation to relationship property, and every such agreement has effect as if this Act had not been passed.

    99 Savings applying on and from 1 February 2002
    • The death of a spouse or de facto partner does not affect the validity or effect of anything already done or suffered under this Act or under the Matrimonial Property Act 1963.

62 Schedules repealed
  • The principal Act is amended by repealing Schedules 1, 2, and 3

63 Amendments to Insolvency Act 1967
  • (1) Section 43 of the Insolvency Act 1967 is repealed.

    (2) Section 42(3) of the Insolvency Act 1967 is consequentially amended by omitting the expression Subject to section 43 of this Act, but.

    (3) Section 58(1) of the Insolvency Act 1967 is consequentially amended by omitting the expression section 43(3) of this Act,.

    (4) Section 104(1) of the Insolvency Act 1967 is consequentially amended—

    • (a) by omitting from paragraph (g)(ii) the expression sections 43 and 54, and substituting the expression section 54:

    • (b) by omitting from paragraph (h) the expression sections 43 and 54, and substituting the expression section 54:

    • (c) by omitting from paragraph (i) the expression the debts referred to in section 43, and.

    (5) In any case where a person has been adjudged bankrupt, or there has been an order or election to administer an estate under Part 17 of the Insolvency Act 1967, before the commencement of this section, the Insolvency Act 1967 applies as if this section had not been enacted.

64 Consequential amendments, repeals, and revocation
  • (1) Except as provided in subsections (5) and (7), this section comes into force on 1 February 2002.

    (2) The enactments specified in Schedule 1 are consequentially amended in the manner indicated in that schedule.

    (3) The enactments specified in Schedule 2 are repealed.

    (4) The Matrimonial Property (Specified Sum) Order 1996 (SR 1996/176) is revoked.

    (5) This subsection and the following come into force on 1 August 2001:

    • (b) subsection (6).

    (6) For the purposes of applying section 75A of the Estate and Gift Duties Act 1968 (as substituted by subsection (2) and Schedule 1) during the period beginning on 1 August 2001 and ending with the close of 31 January 2002, the whole of this Act must be treated as if it were in force during that period.

    (7) The amendment to section 16A(4)(1) of the Family Courts Act 1980 in Schedule 1 comes into force—

    • (b) if that Act is not in force on that date, then on the date on which that Act comes into force.

65 Transitional provision
  • Unless the context otherwise requires, every reference to the principal Act in any document whatsoever (other than an enactment specified in Schedule 1) is, after the commencement of this section, to be read as if the words Matrimonial Property were omitted, and the words Property (Relationships) substituted.


Schedule 1
Enactments amended

s 64(2)

Insert in Part 3 after section 66:

66A Commissioner to give effect to orders made under Property (Relationships) Act 1976
  • If a Court makes an order under section 32(2)(d) of the Property (Relationships) Act 1976 in relation to a voluntary agreement that has been accepted under this Part, the Commissioner must, as soon as practicable, take such action as is necessary to give effect to the order.

Omit from section 105(2)(c)(ii) the expression Matrimonial Property Act 1976 and substitute the expression Property (Relationships) Act 1976

Omit from section 53(1) the expression Matrimonial Property Act 1976 and substitute the expression Property (Relationships) Act 1976

Omit from section 57(1) the expression Matrimonial Property Act 1976 and substitute the expression Property (Relationships) Act 1976

Omit from section 67(1) the expression Matrimonial Property Act 1976 and substitute the expression Property (Relationships) Act 1976

Repeal section 128 and substitute:

128A Property (Relationships) Act 1976 not affected
  • Nothing in this Act limits or affects the power of a Court to make an order (including an order made on an ex parte application) under section 27 or section 28 or section 28B or section 28C or section 33 of the Property (Relationships) Act 1976.

    Compare: 1982 No 120 s 41.

Repeal the definition of matrimonial property in section 2(2).

Repeal section 75A and substitute:

75A Exemption for certain dispositions of relationship property
  • (1) In this section,—

    agreement means an agreement made under Part 6 of the Property (Relationships) Act 1976

    child of the de facto relationship has the meaning given to it by section 2 of the Property (Relationships) Act 1976

    child of the marriage has the meaning given to it by section 2 of the Property (Relationships) Act 1976

    de facto partner has the meaning given to it by section 2 of the Property (Relationships) Act 1976

    disposition of relationship property means a disposition of property (being a disposition of relationship property) made by or under an agreement

    relationship property means any relationship property as defined in section 2 of the Property (Relationships) Act 1976.

    (2) If, immediately after a disposition of relationship property is made to a party to an agreement, the value of all legal and equitable interests of that party in the relationship property of both parties to the agreement does not exceed 50% of the total value of that relationship property, the disposition of relationship property does not constitute a gift.

    (3) If, immediately after and as a result of a disposition of relationship property to a party to an agreement, the value of all legal and equitable interests of that party in the relationship property of both parties to the agreement exceeds 50% of the total value of that relationship property, the amount of the value of the relationship property so disposed of that, on such disposal, would have increased the value of all those interests of that party to no more than 50% of the total value of the relationship property of both parties to the agreement does not constitute a gift.

    (4) For the purposes of subsection (2) or subsection (3), the date of any disposition of relationship property made under an agreement is,—

    • (a) if the disposition is made within 3 months after the date of execution of the agreement, the date of execution:

    • (b) if the disposition is made later than 3 months after the date of execution, the date of disposition.

    (5) Any disposition of property by or under an order of the Court under section 25 of the Property (Relationships) Act 1976 does not constitute a gift to the extent that the disposition is to a spouse or de facto partner or former spouse or de facto partner or is solely for the benefit of minor or dependent children of the marriage or, as the case requires, minor or dependent children of the de facto relationship.

    (6) If any disposition of relationship property is made by or under an agreement, a copy of that agreement must be delivered to the Commissioner within 3 months after the date of disposition of that property and, for this purpose, even though no gift may have been made exceeding $12,000 in value, the provisions of sections 79, 80, and 95(5) apply, with any necessary modifications, as if—

    • (a) the agreement were a gift statement; and

    • (b) the party to the agreement making any disposition of property by or under the agreement were a donor; and

    • (c) the party to the agreement to whom the disposition is made were a donee.

    (7) The application of this section is affected by—

    • (a) section 7(2) of the Estate and Gift Duties Amendment Act 1983:

    • (b) section 3(2) of the Estate and Gift Duties Amendment Act 1993.

Repeal paragraph (e) of section 11(1) and substitute:

  • (e) the Property (Relationships) Act 1976:.

Repeal section 11(1A).

Omit from section 16A(4)(1) the expression Matrimonial Property Act 1976 and substitute the expression Property (Relationships) Act 1976.

Omit from section 92(3) the expression section 21 of the Matrimonial Property Act 1976 and substitute the expression Part 6 of the Property (Relationships) Act 1976.

Omit from section 92A(3)(b) the expression Matrimonial Property Act 1976 and substitute the expression Property (Relationships) Act 1976.

Income Tax Act 1994 (1994 No 164)
  • The item relating to the Income Tax Act 1994 was repealed, as from 1 April 2005, by section YA 2 Income Tax Act 2004 (2004 No 35).

Repeal subparagraph (iii) of the first proviso to section 9(2)(d) and substitute:

  • (iii) any mortgage, lease, sale, or disposition by the direction of any Court under section 16 or under the Family Proceedings Act 1980 or by order of any Judge or District Court Judge under the Property (Relationships) Act 1976:.

Omit from section 10(2A) the expression Matrimonial Property Act 1976 and substitute the expression Property (Relationships) Act 1976

Land Transfer (Automation) Amendment Act 1998 (1998 No 123)

Omit from section 26(4) the expression Matrimonial Property Act 1976 and substitute the expression Property (Relationships) Act 1976.

Omit from paragraph (a) of the definition of civil proceedings in section 2 the expression Matrimonial Property Act 1976 and substitute the expression Property (Relationships) Act 1976

Omit from section 2(22) the expression Matrimonial Property Act 1976 and substitute the expression Property (Relationships) Act 1976

Omit from clauses 1(a)(iii) and 1(k) of Schedule 1 the expression Matrimonial Property Act 1976 and substitute in each case the expression Property (Relationships) Act 1976

Omit from clause 1(l) of Schedule 1 the expression section 21 of the Matrimonial Property Act 1976 and substitute the expression Part 6 of the Property (Relationships) Act 1976


Schedule 2
Enactments repealed

s 64(3)

District Courts Amendment Act (No 2) 1992 (1992 No 53)

Section 6 and the heading immediately before it.

Section 2

So much of Part 1 of the Schedule as relates to section 48(4) of the principal Act.

Family Courts Amendment Act 1991 (1991 No 66)
Matrimonial Property Amendment Act 1980 (1980 No 74)
Matrimonial Property Amendment Act (No 2) 1983 (1983 No 145)
Matrimonial Property Amendment Act 1985 (1985 No 28)
Matrimonial Property Amendment Act 1986 (1986 No 99)
Matrimonial Property Amendment Act 1994 (1994 No 45)
Matrimonial Property Amendment Act 1998 (1998 No 54)

So much of Schedule 2 as relates to the principal Act.


Legislative history

24 March 1998Introduction and first reading (Bill 109-1)
6 May 1998Second reading and referral to Government Administration Committee
15 September 1999Reported from Government Administration Committee (Bill 109-2)
29 February 2000Consideration of report
1 June 2000Referred to Justice and Electoral Committee with SOP No 25
30 October 2000Reported from Justice and Electoral Committee (Bill 109-3)
14 November 2000Consideration of report
21 November 2000, 13, 21, 27 March 2001Committee of the whole House (Bill 109-4)
29 March 2001Third reading