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FAMILY LAW ACT 1975 - SECT 90UE

Agreements made in non-referring States that become Part VIIIAB financial agreements

How State agreements can become Part VIIIAB financial agreements

             (1)  This section applies if:

                     (a)  2 people (the couple ) have made a written agreement, signed by both of them, with respect to any of the matters (the eligible agreed matters ) mentioned in subsection (3); and

                     (b)  the agreement was made under a non-referring State de facto financial law; and

                     (c)  either:

                              (i)  a court could not, because of that law, make an order under that law that is inconsistent with the agreement with respect to any of the eligible agreed matters; or

                             (ii)  a court could not, because of that law, make an order under that law that is with respect to any of the eligible agreed matters to which the agreement applies; and

                     (d)  at the time the agreement was made, the members of the couple were not the spouse parties to any Part VIIIAB financial agreement that is binding on them with respect to any of the eligible agreed matters; and

                     (e)  at a later time (the transition time ), the couple's circumstances change so that:

                              (i)  if the de facto relationship has not broken down--sections 90SB, 90SD and 90SK would not prevent a court from making an order or declaration under this Part in relation to the eligible agreed matters if the de facto relationship were to break down; or

                             (ii)  if the de facto relationship has broken down--sections 90SB, 90SD and 90SK do not prevent a court from making an order or declaration under this Part in relation to the eligible agreed matters; and

                      (f)  immediately before the transition time:

                              (i)  the agreement was in force under the non-referring State de facto financial law; and

                             (ii)  the couple were not married to each other.

Paragraph (a) extends to agreements made before the commencement of this section, and to agreements made with one or more other people.

Note 1:       This section extends to agreements made in contemplation of a de facto relationship, during a de facto relationship or after a de facto relationship has broken down.

Note 2:       Part 2 of Schedule 1 to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 deems certain agreements, made under a law of a State that is or becomes a participating jurisdiction, or made under a law of a Territory, to be Part VIIIAB financial agreements.

             (2)  For the purposes of this Act, the agreement is taken, on and after the transition time, to be a Part VIIIAB financial agreement to the extent that the agreement deals with:

                     (a)  the eligible agreed matters; and

                     (b)  matters incidental or ancillary to the eligible agreed matters.

Note:          This means that, after the transition time, the agreement can only be enforced, varied, terminated or otherwise set aside under this Act.

Eligible agreed matters

             (3)  The matters referred to in paragraph (1)(a) are the following:

                     (a)  how all or any of the:

                              (i)  property; or

                             (ii)  financial resources;

                            of either member, or both members, of the couple at the time when the agreement is made, or at a later time and during a de facto relationship between them, is to be distributed;

                     (b)  the maintenance of either member of the couple;

in the event of the breakdown of a de facto relationship between them, or in relation to a de facto relationship between them that has broken down, as the case requires.

             (4)  For the purposes of paragraph (1)(c), disregard whether the non-referring State de facto financial law permits the court to make such an order if the court varies or sets aside the agreement.



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