Property (Relationships) Amendment Act 2001

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 the principal Act
2: Commencement
Except as provided in sections 21(2) 64(5) 64(7)
3: Purposes
The purposes of this Act are—
a: to rename the principal Act as the Property (Relationships) Act 1976
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4: Title repealed
The Title of the principal Act is repealed.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 Property (Relationships)
6: New
Part 1 The principal Act is amended by inserting, after section 1
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
b: Part 2
c: Part 3
d: Part 4
e: Part 5
f: Part 6
g: Part 7
h: Part 8
i: Part 9
2: Sections 1E to 1L
1E: Part 2 Part 2
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
1: Part 3
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
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 Part 4
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 Part 5
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 Part 6
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
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
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 Part 8
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 Family Protection Act 1955
1L: Part 9 Part 9
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
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 The principal Act is amended by repealing section 2
2: Interpretation
In this Act, unless the context otherwise requires,— administration 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 section 18 Court
a: a Family Court; or
b: if another court has jurisdiction in the proceedings, that court de facto partner section 2C de facto relationship section 2D distribution section 46 of the Administration Act 1969 dwellinghouse 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)
vi: household pets; and
b: includes any of the chattels mentioned in paragraph (a)
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
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 Joint Family Homes Act 1964 lawyer
a: other than in Part 6 section 65 section 2 of the Law Practitioners Act 1982
b: in Part 6 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 party B
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 section 2A option A option B section 61 owner personal debt section 20 proceedings sections 51, 96, and 97(3) property
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 section 20B Registrar relationship debt section 20 relationship of short duration section 2E relationship property section 8 separate property section 9 small estate 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 voluntary 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
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 wife
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 B 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
2D: Meaning of de facto relationship
1: For the purposes of this Act, a de facto relationship
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)
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. 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
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) 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
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 The principal Act is amended by repealing section 4
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) 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) subsection (5)
a: subsection (5)
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 section 4A
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
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
11: Maori land not affected
Section 6 the Maori Affairs Act 1953 Te Ture Whenua Maori Act 1993
12: New
sections 7 7A The principal Act is amended by repealing section 7
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)
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)
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)
13: Heading before
section 8 The principal Act is amended by omitting from the heading immediately before section 8 matrimonial relationship
14: Matrimonial property defined
1: Section 8
a: by omitting the word Matrimonial Relationship
b: by omitting from paragraph (a) matrimonial family
c: by inserting in paragraph (c) husband and the wife or by the de facto partners
2: Section 8 paragraphs (d) to (ee)
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
ee: subject to sections 9(3) to (6), 9A, and 10
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 paragraphs (f) to (k)
g: the proportion of the value of any life insurance policy (as defined in section 2
h: any policy of insurance in respect of any property described in paragraphs (a) to (ee)
i: the proportion of the value of any superannuation scheme entitlements (as defined in section 2
j: all other property that is relationship property under an agreement made under Part 6
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 subsection (2)
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 Matrimonial Relationship
15: New
sections 9 to 10 The principal Act is amended by repealing sections 9 and 10
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
3: Subject to section 9A
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) section 25(3)
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) section 10
10: Property acquired by succession or by survivorship or as a beneficiary under a trust or by gift
1: Subsection (2)
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)
c: property acquired out of property to which paragraph (a)
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) section 9(4) Part 6
16: New
Part 3 The principal Act is amended by inserting, after section 10
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 section 25(2)
10B: Application of Act to division of relationship property on death of spouse or de facto partner
1: This Act (including Part 8
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)
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) section 25(2)
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)
b: in the circumstances described in sections 25(3) and 28(1)
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
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
e: in the circumstances described in section 87
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)
3: If a surviving spouse or de facto partner chooses, under section 61
a: sections 76 to 78
b: sections 2 to 53A sections 79 to 94
17: New
Part 4 The principal Act is amended by repealing sections 11 to 18 sections 11 15
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
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)
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 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 section 11A section 11B section 12
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
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)
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 paragraph (a) 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)
5: If, under subsection (4)
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)
4: Nothing in this section prevents a Court from making a declaration or an order under section 25(3)
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 party A
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 party A
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 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
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
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
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)
18A: Effect of misconduct of spouses or de facto partners
1: Except as permitted by subsections (2) and (3)
2: Subject to subsection (3)
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)
18B: Compensation for contributions made after separation
1: In this section, relevant period
2: If, during the relevant period, a spouse or de facto partner ( party A
a: order the other spouse or de facto partner ( party B
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 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 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
5: Relationship property and creditors
.
19: Effect of Act while property undivided
Section 19 spouse or de facto partner
20: New
sections 20 to 20F The principal Act is amended by repealing section 20
20: Interpretation
1: In sections 20A to 20E personal debt
a: a debt that is not a relationship debt:
b: a debt to the extent that it is not a relationship debt relationship debt
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) relationship debt subsection (1)
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
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
b: where section 11B
c: where section 12
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
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
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
i: the specified sum; or
ii: one half of the property or money shared under the applicable section.
4: In this section, specified sum section 53A
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
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)
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
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 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 Joint Family Homes Act 1964
21: New
Part 6
1: The principal Act is amended by repealing section 21
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
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)
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
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 section 21A section 21B
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 section 21A section 21B
2: The Governor-General may, by Order in Council, make regulations prescribing model forms of agreement for the purposes of section 21 section 21A 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 section 21 section 21A section 21B subsections (2) to (5)
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
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
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) section 21 section 21A section 21B
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 section 21A section 21B
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
2: The Court may exercise the power in subsection (1)
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 section 21A section 21B
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 Miscellaneous provisions
21K: Agreements made for valuable consideration
1: Every agreement under section 21 section 21A section 21B
2: Nothing in this section limits or affects the manner of determining, for the purposes of the Estate and Gift Duties Act 1968
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 section 21A 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 section 21A section 21B section 21J
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)
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 section 21A section 21B
b: an agreement to which section 21P section 21Q section 21Q 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)
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) 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
b: an agreement to which section 21Q section 21Q
2: This section is subject to section 47
21S: Agreements made under previous
section 21 Any agreement made before 1 August 2001 under section 21 section 21 section 21A 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
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
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)
b: an agreement to which subsection (2) subsection (2)
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 sections 2 to 2D section 8 section 8
22: New Part heading and heading substituted
The principal Act is amended by repealing the heading immediately before section 22
7: Proceedings under this Act
General .
23: New
section 22 The principal Act is amended by repealing section 22
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)
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 The principal Act is amended by repealing section 23
23: Who can apply
1: The following persons may apply for an order under section 25(1)(a) or (b) 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) section 25(1)(b) 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 section 10D(1)
25: New
sections 24 to 26A The principal Act is amended by repealing sections 24 to 26
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
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)
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 section 10D(1)
25: When Court may make orders
1: On an application under section 23
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)
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)
4: To avoid any doubt, but without limiting subsection (3)
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)
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)
a: by omitting the words the husband or the wife either spouse or de facto partner
b: by omitting the word matrimonial family
c: by omitting the word matrimonial relationship
2: Section 27(2)
a: by inserting, after the word spouse or de facto partner
b: by omitting the word matrimonial family
3: Section 27(3)
a: by omitting the words Notwithstanding anything in section 5 of this Act
b: by omitting the words the husband or wife a spouse or de facto partner
4: Section 27
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 subsection (1)
1: Regardless of section 23 applicant
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
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
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)
a: by inserting, after the word minor or
b: by inserting, after the word marriage or, as the case requires, any minor or dependent child of the de facto relationship,
2: Section 28A
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 The principal Act is amended by repealing section 28B
28B: Ancillary furniture order
1: On or after making an occupation order under section 27(1) section 28(1)
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 applicant
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)
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) 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. 1995 No 86 s 67
28D: Effect of furniture orders
1: The person in whose favour an order is made under section 28B section 28C
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. 1995 No 86 ss 64, 68 Hire purchase agreements .
30: Orders when property subject to hire purchase agreement
Section 29
a: by omitting the words the husband or the wife or both either or both spouses or de facto partners
b: by inserting, after the word spouse or de facto partner
31: New heading inserted
The principal Act is amended by inserting, immediately before section 30 Insurance policies .
32: Orders in relation to insurance policies
Section 30
a: by omitting from paragraph (a) the husband or the wife either spouse or de facto partner
b: by inserting, after the word spouse paragraphs (a) (b) or de facto partner
33: New heading inserted
The principal Act is amended by inserting, immediately before section 31 Superannuation scheme entitlements .
34: Orders in relation to superannuation rights
1: Section 31(1)
a: by omitting the word matrimonial relationship
b: by omitting the expression section 8(i) section 8(1)(i)
c: by omitting the words the husband or wife either spouse or de facto partner
d: by inserting, after the word spouse or de facto partner
2: Section 31(3) he or she
35: New headings and
section 32 The principal Act is amended by repealing section 32 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
b: any child support payable by 1 spouse or de facto partner, under a formula assessment under the Child Support Act 1991
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
b: discharge, vary, extend, or suspend an order made under the Family Proceedings Act 1980
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 section 104 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
b: an application for an order under Part VII of the Child Support Act 1991
c: the cancellation, variation, extension, or suspension of a voluntary agreement. Ancillary powers .
36: Ancillary powers of Court
1: Section 33 subsection (3)
3: In particular, but without limiting the generality of subsections (1) and (2)
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) spouse or de facto partner
3: Section 33(5) matrimonial relationship
4: Section 33(7) his or her
37: New heading inserted
The principal Act is amended by inserting, immediately before section 35 Miscellaneous provisions .
38: Proceedings may be in private
Section 35(1) the husband or the wife either spouse or de facto partner
39: Restriction of publication of reports of proceedings
1: Section 35A subsection (2)
2: Every person who contravenes subsection (1)
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 subsection (4)
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 subsection (2)
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 The principal Act is amended by inserting, after section 37
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)
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)
42: Inquiries, and settlement of schemes
Section 38(2)
a: omitting the words the solicitor or counsel the lawyer
b: omitting the words by solicitor or counsel by a lawyer
43: New heading and
sections 39 to 39B The principal Act is amended by repealing section 39 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
a: section 71
b: section 71A(2), (4), and (6)
c: section 72
d: section 73(2) ex parte
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 section 39
39B: Appeals to Court of Appeal and to Privy Council
1: The provisions of the Judicature Act 1908
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 Costs .
45: New heading inserted
The principal Act is amended by inserting, immediately before section 41 Registration of orders .
46: Registration of orders
Section 41(2)(b) subsections (4) and (6) of section 21 of this Act section 21F(2), (4), and (5)
47: Heading before
section 42 The principal Act is amended by inserting in the heading immediately before section 42 spouses' or de facto partners'
48: Notice of interest against title
1: Section 42(2) form set out in the First Schedule to this Act prescribed form
2: Section 42(3)
a: omitting from paragraph (a) either a District Court or the High Court a Family Court or a District Court or the High Court
b: omitting from paragraph (b) District Court or the High Court Family Court or a District Court or the High Court
49: Dispositions may be restrained
1: Section 43(1)
a: by inserting, after the words any other person ( party B
b: by omitting the words on the application of that second-named person and
2: Section 43 subsection (1)
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) solicitor lawyer
50: Dispositions may be set aside
1: Section 44(1)
a: by inserting, after the words any person ( party B
b: by omitting the words , on the application of that second-named person,
2: Section 44 subsection (1)
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) paragraphs (a) (b) (c) his or her
4: Section 44(4) his or her
51: New headings and
sections 44A to 44F The principal Act is amended by inserting, after section 44 Orders relating to trusts
44A: Application of
sections 44B and 44C Sections 44B and 44C
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)
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
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)
a: an order under subsection (2)(a) or (b)
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)
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
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
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
4: For the purposes of subsections (2) and (3) equity security 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)
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
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)
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)
a: by inserting, after the words District Court Judge or a Family Court Judge
b: by omitting the word matrimonial family
2: Section 45(2) $400 $2,000
53: Protection of mortgagee
Section 46 the husband or wife a spouse or de facto partner
54: New
section 47 The principal Act is amended by repealing section 47
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)
a: a situation described in section 25(2)
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 Further miscellaneous provisions .
56: Incidence of orders against personal representative of spouse
Section 48
57: Proceedings in tort
Section 51(2) marriage or de facto relationship
58: New
sections 52A 52B The principal Act is amended by inserting, after section 52
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
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) solicitors or counsel appointed under subsection (2) of section 26 of this Act lawyers appointed under section 37A
2: Section 53(2A) paragraph (b)
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 The principal Act is amended by inserting, after section 53
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 9 The principal Act is amended by repealing sections 55 to 57
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
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
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 Family Protection Act 1955 Nothing in this Act prevents a person from making an application under the Law Reform (Testamentary Promises) Act 1949 Family Protection Act 1955 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 section 157 of that Act Part XVII of that Act
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
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 section 153 of the Insolvency Act 1967 section 157 of that Act 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 section 31 of the Administration Act 1969
2: If this section applies, the appointee (in any case where subsection (1)(a) subsection (1)(b)
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)
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 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)
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 Reform (Testamentary Promises) Act 1949 Family Protection Act 1955
7: In proceedings commenced after the death of 1 of the spouses or de facto partners, section 94 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)
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
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) subsection (4)
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)
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
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)
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) survivor 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
a: the registrar of that stock (if paragraph (b)
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
a: the directors of the company that issued the shares or debentures (if paragraph (b)
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
a: the person authorised under that section to make payment of that sum (if paragraph (b)
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
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 section 62(1) section 62(2)
2: The Court may, under section 69
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 Family Protection Act 1955
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 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: where section 47(2) of the Administration Act 1969
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) section 62(2) whichever happens first.
2: Despite subsection (1) 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) 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)
ii: under section 69
iii: under section 77
iv: under section 89(2) or section 90(2)
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
b: sections 2 to 53A 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)
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
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 Law Reform (Testamentary Promises) Act 1949
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)
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)
3: This section is subject to Part 6 and section 87
4: Nothing in this section applies to property to which section 10(2)
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)
3: This section is subject to Part 6 and section 87
4: Nothing in this section applies to property to which section 10(2)
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 sections 11 to 13
2: Section 14 subsection (1) sections 11 to 12
3: If a de facto relationship is a relationship of short duration (as defined in section 2E
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)
86: Compensation for actions after separation or death
1: If this Part applies, then for the purposes of sections 18B and 18C relevant period
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)
3: The Court may exercise the power in section 18C(2)
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
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
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
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) 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)
3: The following persons may apply for an order under section 25(1)(b) 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 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
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
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
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
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 section 24(2)
2: The Court's power to grant an extension under section 24(2)
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
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) subsection (3)
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)
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)
3: The Court may not make an order under section 28
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
93: Appeals
In section 39(1) any other person prejudicially affected
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)
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 Reform (Testamentary Promises) Act 1949 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 Part III 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
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 section 98(3)
2: If—
a: proceedings were commenced under the Matrimonial Property Act 1963 Part VIII of the Matrimonial Proceedings Act 1963
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 Part VIII of the Matrimonial Proceedings Act 1963
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
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
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
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
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 3
63: Amendments to
Insolvency Act 1967
1: Section 43 Insolvency Act 1967
2: Section 42(3) Insolvency Act 1967 Subject to section 43 of this Act
3: Section 58(1) Insolvency Act 1967 section 43(3) of this Act
4: Section 104(1) Insolvency Act 1967
a: by omitting from paragraph (g)(ii) sections 43 and 54 section 54
b: by omitting from paragraph (h) sections 43 and 54 section 54
c: by omitting from paragraph (i) the debts referred to in section 43
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 Insolvency Act 1967 Insolvency Act 1967
64: Consequential amendments, repeals, and revocation
1: Except as provided in subsections (5) (7)
2: The enactments specified in Schedule 1
3: The enactments specified in Schedule 2
4: The Matrimonial Property (Specified Sum) Order 1996 (SR 1996/176)
5: This subsection and the following come into force on 1 August 2001:
a: the amendments to the Estate and Gift Duties Act 1968 Schedule 1
b: subsection (6)
6: For the purposes of applying section 75A Estate and Gift Duties Act 1968 subsection (2) 1
7: The amendment to section 16A(4)(1) Family Courts Act 1980 Schedule 1
a: on 1 February 2002 if the Family Courts Amendment Act 2000
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 Matrimonial Property Property (Relationships)