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FAMILY LAW ACT 1975 - SECT 90MP

Separation declaration

             (1)  A separation declaration is a written declaration that complies with this section, and may be included in the superannuation agreement to which it relates.

             (2)  The declaration must be signed by at least one of the spouses. For this purpose, if a spouse has died the spouse's legal personal representative may sign the declaration.

Spouses who are parties to a marriage

          (2A)  Subsections (3) to (5) apply if the spouses are parties to a marriage.

             (3)  If section 90MQ applies to the declaration, then the declaration must state that:

                     (a)  the spouses are married; and

                     (b)  the spouses separated and thereafter lived separately and apart for a continuous period of at least 12 months immediately before the declaration time; and

                     (c)  in the opinion of the spouse (or spouses) making the declaration, there is no reasonable likelihood of cohabitation being resumed.

             (4)  If section 90MQ does not apply to the declaration, then the declaration must state that the spouses are married, but are separated, at the declaration time.

          (4A)  If either or both of the spouses have died, then the declaration must state:

                     (a)  if section 90MQ applies to the declaration--that at the most recent time when both spouses were alive:

                              (i)  the spouses were married; but

                             (ii)  the spouses were separated and had lived separately and apart for a continuous period of at least 12 months immediately before that time; or

                     (b)  if section 90MQ does not apply to the declaration--that the spouses were married, but separated, at the most recent time when both spouses were alive.

Subsections (3) and (4) have effect subject to this subsection.

             (5)  For the purposes of subsections (3) to (4A), the question whether spouses lived separately and apart for a continuous period of not less than 12 months before a particular date is to be determined in the same way as it is under section 48.

             (6)  In subsections (3) to (5):

"separated " has the same meaning as in section 48 (as affected by sections 49 and 50).

Spouses who are parties to a de facto relationship

             (7)  Subsections (8) to (12) apply if the spouses are parties to a de facto relationship.

             (8)  If section 90MQ applies to the declaration, then the declaration must state that:

                     (a)  the spouses lived in a de facto relationship; and

                     (b)  the spouses separated and thereafter lived separately and apart for a continuous period of at least 12 months immediately before the declaration time; and

                     (c)  in the opinion of the spouse (or spouses) making the declaration, there is no reasonable likelihood of cohabitation being resumed.

             (9)  If section 90MQ does not apply to the declaration, then the declaration must state that the spouses lived in a de facto relationship, but are separated, at the declaration time.

           (10)  If either or both of the spouses have died, then the declaration must state:

                     (a)  if section 90MQ applies to the declaration--that:

                              (i)  the spouses lived in a de facto relationship; but

                             (ii)  at the most recent time when both spouses were alive, the spouses were separated and had lived separately and apart for a continuous period of at least 12 months immediately before that time; or

                     (b)  if section 90MQ does not apply to the declaration--that the spouses:

                              (i)  lived in a de facto relationship; but

                             (ii)  were separated at the most recent time when both spouses were alive.

Subsections (8) and (9) have effect subject to this subsection.

           (11)  For the purposes of subsection (8) and paragraph (10)(a), the spouses can have separated and be living separately and apart even if:

                     (a)  their cohabitation was brought to an end by the action or conduct of one only of them; or

                     (b)  they have continued to reside in the same residence; or

                     (c)  either of them has rendered some household services to the other.

           (12)  For the purposes of subsection (8) and paragraph (10)(a), if, after the spouses separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the relevant time referred to in paragraph (8)(b) or (10)(a):

                     (a)  the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period; but

                     (b)  the period of cohabitation shall not be taken to be part of the period of living separately and apart.



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