Commonwealth Consolidated Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

FAMILY LAW ACT 1975 - SECT 90RC

Relationship with State and Territory laws

De facto financial provisions

             (1)  In this section:

de facto financial provisions means the following provisions:

                     (a)  this Part;

                     (b)  Part VIIIAA (as applied by section 90TA);

                     (c)  Part VIIIB, to the extent to which it relates to a superannuation interest to be allocated between the parties to a de facto relationship;

                     (d)  subsection 114(2A).

State and Territory laws do not apply to financial matters

             (2)  Parliament intends that the de facto financial provisions are to apply to the exclusion of any law of a State or Territory to the extent that the law:

                     (a)  deals with financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships; and

                     (b)  deals with those matters by referring expressly to de facto relationships (regardless of how the State or Territory law describes those relationships).

Note 1:       If, for example, both this Part and a law of a non-referring State deal with the distribution of property between the parties to a de facto relationship that has broken down after the commencement of this section, then the parties can only seek to distribute the property under this Part. Subsection (2) has the effect of preventing the parties from seeking to distribute the property under the State law.

Note 2:       For  de facto relationship , see section 4AA.

Exception--insufficient link to a participating jurisdiction or Division 2 not applicable because of section 90SB

             (3)  Despite subsection (2), Parliament does not intend that the de facto financial provisions are to apply to the exclusion of a law of a State or Territory in relation to a financial matter relating to the parties to a de facto relationship arising out of the breakdown of the relationship if:

                     (a)  a court cannot make an order under this Part in relation to that financial matter because of section 90SB, 90SD or 90SK; and

                     (b)  there is no Part VIIIAB financial agreement that is binding on the parties dealing with that financial matter.

Example 1: Abbey and Bob are parties to a de facto relationship that has broken down, and have never been ordinarily resident in a participating jurisdiction. Subsection (3) has the effect that State law will govern financial matters arising out of the breakdown of their relationship.

Example 2: Cleo and Dan are parties to a de facto relationship that has broken down after the commencement of this section. Early in their relationship, they made a financial agreement under the law of a non-referring State, but later spent most of their relationship in a participating jurisdiction. Cleo and Dan now have a sufficient geographical link with a participating jurisdiction for either of them to apply for an order under this Part in relation to financial matters arising out of the breakdown of their relationship. This means that subsection (3) will not apply and that their financial agreement will not be enforceable under State law because of subsection (2). However, their financial agreement will be enforceable under this Part as a Part VIIIAB financial agreement (see section 90UE).

Exception--laws facilitating this Act

             (4)  Despite subsection (2), Parliament does not intend that the de facto financial provisions are to apply to the exclusion of a law of a State or Territory to the extent that the law facilitates the operation of this Act.

Note:          This Part is not intended to apply to the exclusion of, for example, a State law that deals with superannuation entitlements by acknowledging superannuation splitting under Part VIIIB of this Act.

Exception--prescribed State or Territory laws

             (5)  Despite subsection (2), Parliament does not intend that the de facto financial provisions are to apply to the exclusion of a law of a State or Territory if the law is prescribed in regulations made for the purposes of this subsection.



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback