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 3   De facto relationships linked to earlier participating jurisdictions

88   Pre-commencement agreements - made during de facto relationships

(1) This item applies if:

(a) before commencement and while in a de facto relationship, the parties to the de facto relationship (the couple ) 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 an earlier participating jurisdiction; and

(c) 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; and

(d) immediately before commencement:

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

(ii) 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.

Note: Agreements made in non-referring States are not covered by this item. Those agreements continue to be governed by State law unless they are transformed into Part VIIIAB financial agreements (see section 90UE of the new Act).

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

Note: After commencement, 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.