Document ID: chunk:federal_register_of_legislation:C2021C00511:clause:4_5:p1
Version: federal_register_of_legislation:C2021C00511
Segment Type: clause
Provision Reference: sch 4 cl 5 (pt 1/2)
Character Range: 41948–44603

5  Financial agreements and separation declarations
(1) This item applies if:
 (a) before the recognition time, the parties to a pre‑commencement same‑sex marriage made a Part VIIIAB financial agreement relating to a contemplated, actual or former de facto relationship between them:
 (i) whether or not they were parties to the pre‑commencement same‑sex marriage at the time they made the agreement; and
 (ii) whether or not anyone else is a party to the agreement; and
 (b) under section 90UJ of the Family Law Act 1975, the agreement is binding on the parties to the agreement immediately before the recognition time.
(2) For the purposes of a law of the Commonwealth (including the Family Law Act 1975) at and after the recognition time, the agreement, with the necessary changes, is taken:
 (a) to be a financial agreement made under Part VIIIA of that Act relating to a contemplated, actual or former marriage between the parties to the pre‑commencement same‑sex marriage; and
 (b) to be binding on the parties to the agreement under section 90G of that Act until the agreement is terminated or set aside in accordance with that Act.
(3) However, the agreement is taken not to include a provision that deals with a matter that could not validly have been dealt with in a Part VIIIAB financial agreement, even if the matter could validly be dealt with in a financial agreement.
(4) Section 90E of the Family Law Act 1975 does not apply in relation to the agreement at and after the recognition time if the agreement was covered by section 90UE (agreements made in non‑referring States that become Part VIIIAB financial agreements) of that Act before that time.
Note: Section 90E and subsection 90UH(1) of that Act set out requirements for provisions in agreements relating to the maintenance of a party or a child or children. Subsection 90UH(1) does not apply in relation to a Part VIIIAB financial agreement covered by section 90UE.
(5) If, before the recognition time, a separation declaration was made, as described in section 90UF of the Family Law Act 1975, for the purposes of giving effect to the agreement (whether the declaration was included in the agreement or not), the declaration is taken on and after that time to be a separation declaration made as described in section 90DA of that Act.
(6) If, before the recognition time, a separation declaration was made as described in subsection 90MP(8), (9) or (10) of the Family Law Act 1975 in relation to the agreement so far as it is a superannuation agreement for the purposes of Part VIIIB of that Act, the declaration is taken on and after that time to be a separation declaration made