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

91   Pre-transition time agreements - made in contemplation of de facto relationships

(1) This item applies if:

(a) before the transition time for the State, 2 people (the couple ) who were contemplating entering into a de facto relationship with each other made a written agreement, signed by both of them, with respect to any of the matters (the eligible agreed matters ) mentioned in subitem (3); and

(b) the agreement was made under a preserved law of the State; and

(c) either:

(i) a court could not, because of the preserved law, make an order under that law that is inconsistent with the agreement with respect to any of the eligible agreed matters; or

(ii) a court could not, because of the preserved law, make an order under that law that is with respect to any of the eligible agreed matters to which the agreement applies; and

(d) at the transition time for the State, the members of the couple were not the spouse parties to any Part VIIIAB financial agreement that is binding on them with respect to any of the eligible agreed matters; and

(e) immediately before the transition time for the State:

(i) the agreement was in force under the preserved law; and

(ii) if the couple had entered into the de facto relationship - the de facto relationship had not broken down; and

(iii) the couple were not married to each other.

Paragraph (a) extends to an agreement made with one or more other people.

(2) For the purposes of the new Act, the agreement is taken, on and after the transition time, to be a Part VIIIAB financial agreement made as mentioned in subsection 90UB(1) of the new Act to the extent that the agreement deals with the eligible agreed matters.

Note: After the transition time, the agreement can only be enforced, varied, terminated or otherwise set aside under the new Act.

(3) The matters referred to in paragraph (a) of subitem (1) are the following:

(a) how all or any of the:

(i) property; or

(ii) financial resources;

of either member, or members, of the couple at the time when the agreement is made, or at a later time and during the de facto relationship, is to be distributed in the event of the breakdown of the de facto relationship;

(b) the maintenance of either member of the couple in the event of the breakdown of the de facto relationship;

(c) matters incidental or ancillary to those mentioned in paragraph (a) or (b).

(4) For the purposes of paragraph (c) of subitem (1), disregard whether the preserved law permits the court to make such an order if the court varies or sets aside the agreement.