Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (115 of 2008)

Schedule 1   Amendments relating to de facto financial matters

Part 2   Transitional provisions

Division 4   De facto relationships linked to later participating jurisdictions

90A   Opting into the new regime

Choosing the new regime

(1) The parties to a de facto relationship that broke down before the transition time for the State may choose for Parts VIIIAB and VIIIB, and subsection 114(2A), of the new Act to apply in relation to the de facto relationship.

Note 1: Whether the parties will be able to obtain an order under those provisions of the new Act, or make a Part VIIIAB financial agreement, will depend on whether the tests found in those provisions are satisfied for the de facto relationship.

Note 2: Items 91 and 92 are not affected by a choice under this item. Those items relate to de facto relationships that (if they are to break down) will break down after the transition time for the State.

When a choice can be made

(2) A choice under subitem (1) can be made if:

(a) the choice is unconditional; and

(b) subitems (3), (4) and (5) are satisfied for the choice.

A choice is irrevocable.

(3) This subitem is satisfied for the choice if no order (other than an interim order) under a preserved law of a State or Territory has been made by a court in relation to either of the following:

(a) how all or any of the:

(i) property; or

(ii) financial resources;

that either or both of the parties to the de facto relationship had or acquired during the de facto relationship is to be distributed;

(b) the maintenance of either of the parties to the de facto relationship.

(4) This subitem is satisfied for the choice if:

(a) the parties have not made a designated State/Territory financial agreement in relation to their de facto relationship; or

(b) if the parties have made such an agreement, that agreement has ceased to have effect without:

(i) any property being distributed; or

(ii) any maintenance being paid;

under the agreement.

(5) This subitem is satisfied for the choice if:

(a) the choice is in writing and signed by both of the parties to the de facto relationship; and

(b) each of the parties was provided, before the choice was signed by him or her, with:

(i) independent legal advice from a legal practitioner about the advantages and disadvantages, at the time that the advice was provided, to the party of making the choice; and

(ii) a signed statement by the legal practitioner stating that this advice was given to the party.

(6) For the purposes of Part VIIIAB of the new Act, a choice can be included in a Part VIIIAB financial agreement for which the parties are the spouse parties.

Setting aside a choice

(7) A court may make an order setting aside a choice if the court is satisfied that, having regard to the circumstances in which the choice was made, it would be unjust and inequitable if the court does not set the choice aside.

(8) A court setting aside a choice under subitem (7) may make such order or orders (including an order for the transfer of property) as it considers just and equitable to, so far as is practicable, return the rights of:

(a) the parties to the de facto relationship; and

(b) any other interested persons affected by the choice;

to their position immediately before the choice was made.

(9) Subsections 90UM(8) and (9) of the new Act apply in relation to setting aside a choice as if:

(a) a reference in those subsections to subsection 90UM(1) or (6) of the new Act were a reference to subitem (7) or (8); and

(b) the reference in those subsections to section 90UM of the new Act were a reference to this item.