An Act to make provision with respect to the rights and obligations of persons in certain domestic relationships.
long title: Am 1999 No 4, Sch 1 [1].
Part 1 Preliminary
1 Name of Act
This Act may be cited as the Property (Relationships) Act 1984.s 1: Am 1999 No 4, Sch 1 [2].
2 Commencement
(1) Sections 1 and 2 shall commence on the date of assent to this Act.(2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.
3 Definitions
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:adult person means a person of or above the age of 18 years.applicant includes a cross-applicant.appointed day means the day appointed and notified under section 2 (2).de facto relationship—see section 4.domestic relationship—see section 5.financial resources, in relation to parties to a domestic relationship or either of them, includes:(a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided,(b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties to the relationship or either of them,(c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and(d) any other valuable benefit.Local Court means a Local Court established under section 6 (1) of the Local Courts Act 1982.property, in relation to parties to a domestic relationship or either of them, includes real and personal property and any estate or interest (whether a present, future or contingent estate or interest) in real or personal property, and money, and any debt, and any cause of action for damages (including damages for personal injury), and any other chose in action, and any right with respect to property.regulation means a regulation made under this Act.Supreme Court means the Supreme Court of New South Wales.(2) (Repealed)(3) A reference in this Act to periodic maintenance is a reference to maintenance paid or payable or to be paid, as the case may require, by means of a weekly, fortnightly, monthly, yearly or other periodic sum.s 3: Am 1996 No 76, Sch 1.3; 1999 No 4, Sch 1 [3]–[8].
4 De facto relationships
(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:(a) who live together as a couple, and(b) who are not married to one another or related by family.(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be 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) No finding in respect of any of the matters mentioned in subsection (2) (a)–(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists 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) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.s 4: Rep 1985 No 231, Sch 4 (1). Ins 1999 No 4, Sch 1 [9].
5 Domestic relationships
(1) For the purposes of this Act, a domestic relationship is:(a) a de facto relationship, or(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.(2) For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:(a) for fee or reward, or(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).(3) A reference in this Act to a child of the parties to a domestic relationship is a reference to any of the following:(a) a child born as a result of sexual relations between the parties,(b) a child adopted by both parties,(c) where the domestic relationship is a de facto relationship between a man and a woman, a child of the woman:(i) of whom the man is the father, or(ii) of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father, except where such a presumption is rebutted,(d) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998).(4) Except as provided by section 6, a reference in this Act to a party to a domestic relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.s 5: Subst 1999 No 4, Sch 1 [9].
5A Family relationship
(1) For the purposes of sections 4 and 5, persons are related by family if:(a) one is the parent, or another ancestor, of the other, or(b) one is the child, or another descendant, of the other, or(c) they have a parent in common.(2) For the purposes of this section:(a) a person is taken to be an ancestor or descendant of another person even if the relationship between them is traced through, or to, a person who is or was an adopted child, and(b) the relationship of parent and child between an adoptive parent and an adopted child is taken to continue even though the order by which the adoption was effected has been annulled, cancelled or discharged or the adoption has otherwise ceased to be effective, and(c) the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, is taken to be or to have been the natural relationship of child and parent, and(d) a person who has been adopted more than once is taken to be the child of each person by whom he or she has been adopted.(3) In subsection (2), adopted means adopted under the law of any place, whether in Australia or not, relating to the adoption of children.s 5A: Ins 1999 No 4, Sch 1 [9].
6 Application of Act
(1) This Act (except Part 5) does not apply to or in respect of:(a) a de facto relationship which ceased before the appointed day, or(b) a person in so far as he or she was a party to a de facto relationship referred to in paragraph (a).(2) Without affecting subsection (1), this Act, as amended by the Property (Relationships) Legislation Amendment Act 1999, does not (except for Part 5) apply to or in respect of:(a) a domestic relationship that ceased before the commencement of this subsection, or(b) a person in so far as he or she was a party to a relationship referred to in paragraph (a).s 6: Am 1999 No 4, Sch 1 [10] [11].
7 Other rights of parties to relationship not affected by this Act
Nothing in this Act derogates from or affects any right of a party to a domestic relationship to apply for any remedy or relief under any other Act or any other law.s 7: Am 1999 No 4, Sch 1 [12].
8 Declaration of interests in property
(1) Without limiting the generality of section 7, in proceedings between parties to a domestic relationship with respect to existing title or rights in respect of property, a court may declare the title or rights, if any, that either party to the relationship has in respect of the property.(2) Where a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including:(a) orders as to possession, and(b) in the case of a Local Court, orders of the kind which may be made under section 38 (1) (b), (c), (i) and (j).(3) An order under this section is binding on the parties to the relationship but not on any other person.s 8: Am 1999 No 4, Sch 1 [7] [13] [14].
Part 2 Jurisdiction
9 Courts having jurisdiction under this Act
Subject to this Act, a person may apply to:(a) the Supreme Court, orfor an order or relief under this Act.(b) a Local Court,
10 Limit of jurisdiction of Local Courts
Except as provided by section 12, a Local Court shall not have jurisdiction under this Act:(a) in relation to property, to declare a title or right or adjust an interest, orof a value or amount in excess of the amount prescribed for the time being by section 12 of the Local Courts (Civil Claims) Act 1970.(b) to make an order for maintenance,
11 Staying and transfer of proceedings
(1) Where there are pending in a court proceedings that have been instituted under this Act by or in relation to a person and it appears to the court that other proceedings that have been so instituted by or in relation to the same person are pending in another court having jurisdiction under this Act, the firstmentioned court:(a) may stay the proceedings pending before it for such time as it thinks fit, or(b) may dismiss the proceedings.(2) Where there are pending in a court proceedings that have been instituted under this Act and it appears to the court that it is in the interests of justice that the proceedings be dealt with in another court having jurisdiction under this Act, the court may transfer the proceedings to the other court.
12 Transfer of proceedings from Local Courts in certain cases
(1) Where proceedings are instituted in a Local Court with respect to an interest in property, being an interest of a value or amount in excess of the amount prescribed for the time being by section 12 of the Local Courts (Civil Claims) Act 1970, the Local Court shall, unless the parties agree to the Court hearing and determining the proceedings, transfer the proceedings to the District Court or the Supreme Court, as may be appropriate.(2) Where proceedings referred to in subsection (1) are before it, the Local Court may transfer the proceedings of its own motion, notwithstanding that the parties would be willing for the Local Court to hear and determine the proceedings.(3) Before transferring proceedings under subsection (1), the Local Court may make such orders as it considers necessary pending the disposal of the proceedings by the District Court or Supreme Court.(4) Where proceedings are transferred under subsection (1), the District Court or Supreme Court, as the case may be, shall, subject to the rules of court, proceed as if the proceedings had been originally instituted in that Court.(5) Without prejudice to the duty of a Local Court to comply with this section, failure by the Local Court so to comply does not invalidate any order of the Court in the proceedings.s 12: Am 1997 No 58, Sch 2.1 [1]–[4].
13 Courts to act in aid of each other
All courts having jurisdiction under this Act shall severally act in aid of and be auxiliary to each other in all matters under this Act.
Part 3 Proceedings for financial adjustment
Division 1 Preliminary
14 Applications for orders under this Part
(1) Subject to this Part, a party to a domestic relationship may apply to a court for an order under this Part for the adjustment of interests with respect to the property of the parties to the relationship or either of them or for the granting of maintenance, or both.(2) An application referred to in subsection (1) may be made whether or not any other application for any remedy or relief is or may be made under this Act or any other Act or any other law.s 14: Am 1999 No 4, Sch 1 [12] [14].
15 Prerequisites for making of order—residence within State etc
(1) A court shall not make an order under this Part unless it is satisfied:(a) that the parties to the application were or either of them was resident within New South Wales on the day on which the application was made, and(b) that:(i) both parties were resident within New South Wales for a substantial period of their domestic relationship, or(ii) substantial contributions of the kind referred to in section 20 (1) (a) or (b) have been made in New South Wales by the applicant.(2) For the purposes of subsection (1) (b) (i), the parties to an application shall be taken to have been resident within New South Wales for a substantial period of their domestic relationship if they have lived together in the State for a period equivalent to at least one-third of the duration of their relationship.s 15: Am 1999 No 4, Sch 1 [15].
16 Relevant facts and circumstances
Where a court is satisfied as to the matters specified in section 15 (1) (a) and (b), it may make or refuse to make an order under this Part by reason of facts and circumstances notwithstanding that those facts and circumstances, or some of them, took place before the appointed day or outside New South Wales.
17 Prerequisites for making of order—length of relationship etc
(1) Except as provided by subsection (2), a court shall not make an order under this Part unless it is satisfied that the parties to the application have lived together in a domestic relationship for a period of not less than 2 years.(2) A court may make an order under this Part where it is satisfied:(a) that there is a child of the parties to the application, or(b) that the applicant:(i) has made substantial contributions of the kind referred to in section 20 (1) (a) or (b) for which the applicant would otherwise not be adequately compensated if the order were not made, orand that the failure to make the order would result in serious injustice to the applicant.(ii) has the care and control of a child of the respondent,s 17: Am 1999 No 4, Sch 1 [15].
18 Time limit for making applications
(1) If a domestic relationship has ceased, an application to a court for an order under this Part can only be made within the period of 2 years after the date on which the relationship ceased, except as otherwise provided by this section.(2) A court may, at any time after the expiration of the period referred to in subsection (1), grant leave to a party to a domestic relationship to apply to the court for an order under this Part (other than an order under section 27 (1) made where the court is satisfied as to the matters specified in section 27 (1) (b)) where the court is satisfied, having regard to such matters as it considers relevant, that greater hardship would be caused to the applicant if that leave were not granted than would be caused to the respondent if that leave were granted.(3) Where, under subsection (2), a court grants a party to a domestic relationship leave to apply to the court for an order under this Part, the party may apply accordingly.s 18: Am 1999 No 4, Sch 1 [12] [16] [17].
19 Duty of court to end financial relationships
In proceedings for an order under this Part, a court shall, so far as is practicable, make such orders as will finally determine the financial relationships between the parties to a domestic relationship and avoid further proceedings between them.s 19: Am 1999 No 4, Sch 1 [7].
Division 2 Adjustment of interests with respect to property
20 Application for adjustment
(1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to:(a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and(b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely:(i) a child of the parties,(ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties.(2) A court may make an order under subsection (1) in respect of property whether or not it has declared the title or rights of a party to a domestic relationship in respect of the property.s 20: Am 1999 No 4, Sch 1 [12] [14] [18] [19].
21 Adjournment of application—likelihood of significant change in circumstances
(1) Without limiting the power of a court to grant an adjournment in relation to any proceedings before it, where, on an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, or otherwise, the court is of the opinion:(a) that there is likely to be a significant change in the financial circumstances of the parties or either of them and that, having regard to the time when that change is likely to take place, it is reasonable to adjourn the proceedings, andthe court may, if so requested by either party to the relationship, adjourn the application until such time, before the expiration of a period specified by the court, as that party applies for the application to be determined, but nothing in this section requires the court to adjourn any application in any particular circumstances.(b) that an order that the court could make with respect to the property of the parties or either of them if that significant change in financial circumstances occurs is more likely to do justice as between the parties than an order that the court could make immediately with respect to the property of the parties or either of them,(2) Where a court proposes to adjourn an application as provided by subsection (1), the court may, before so adjourning the application, make such order or orders (if any) as it considers appropriate with respect to the property of the parties to the relationship or either of them.(3) A court may, in forming an opinion for the purposes of subsection (1) as to whether there is likely to be a significant change in the financial circumstances of the parties to the relationship or either of them, have regard to any change in the financial circumstances of a party that may occur by reason of the vesting in the parties or either of them or the use or application in or towards the purposes of the parties or either of them of a financial resource of the parties or either of them, but nothing in this subsection limits the circumstances in which the court may form the opinion that there is likely to be a significant change in the financial circumstances of the parties or either of them.s 21: Am 1999 No 4, Sch 1 [12] [14] [19]–[22].
22 Adjournment of application—proceedings in the Family Court of Australia
(1) Without limiting the power of a court to grant an adjournment in relation to any proceedings before it, where, at any time before the court has made a final order under this Part to adjust interests with respect to the property of parties to a domestic relationship or either of them, proceedings in relation to the property of the parties or either of them are commenced in the Family Court of Australia, the court may adjourn the hearing of the application for the order.(2) Where the hearing of an application for an order has been adjourned under subsection (1), the applicant for the order may, where the proceedings referred to in that subsection are delayed by neglect or by the unreasonable conduct of a party to those proceedings or by collusion between the parties to those proceedings, apply to the court for the hearing of the application to proceed.s 22: Am 1999 No 4, Sch 1 [7] [19].
23 Deferment of order
Where a court is of the opinion that a party to a domestic relationship in respect of the property of whom an order is made pursuant to an application under section 20 is likely to become entitled, within a short period, to property which may be applied in satisfaction of the order, the court may defer the operation of the order until such date or the occurrence of such event as is specified in the order.s 23: Am 1999 No 4, Sch 1 [12].
24 Effect of death of parties on application
(1) Where, before an application under section 20 is determined, either party to the application dies, the application may be continued by or against, as the case may require, the legal personal representative of the deceased party.(2) Where a court is of the opinion:(a) that it would have adjusted interests in respect of property if the deceased party had not died, andthe court may make an order under this Part in respect of that property.(b) that, notwithstanding the death of the deceased party, it is still appropriate to adjust those interests,(3) An order referred to in subsection (2) may be enforced on behalf of, or against, as the case may require, the estate of the deceased party.(4) The rules of a court may, for the purposes of subsection (1), provide for the substitution of the legal personal representative as a party to the application.
25 Effect of death of party on order
Where, after an order is made against a party to an application under section 20, the party dies, the order may be enforced against the estate of the deceased party.
Division 3 Maintenance
26 No general right to maintenance between parties to relationship
A party to a domestic relationship is not liable to maintain the other party to the relationship, and neither party is entitled to claim maintenance from the other, except as provided in this Division.s 26: Subst 1999 No 4, Sch 1 [23].
27 Order for maintenance
(1) On an application by a party to a domestic relationship for an order under this Part for maintenance, a court may make an order for maintenance (whether for periodic maintenance or otherwise) where the court is satisfied as to either or both of the following:(a) that the applicant is unable to support himself or herself adequately by reason of having the care and control of a child of the parties to the relationship or a child of the respondent, being, in either case, a child who is, on the day on which the application is made:(i) except in the case of a child referred to in subparagraph (ii)—under the age of 12 years, or(ii) in the case of a physically handicapped child or mentally handicapped child—under the age of 16 years,(b) that the applicant is unable to support himself or herself adequately because the applicant’s earning capacity has been adversely affected by the circumstances of the relationship and, in the opinion of the court:(i) an order for maintenance would increase the applicant’s earning capacity by enabling the applicant to undertake a course or programme of training or education, and(ii) it is, having regard to all the circumstances of the case, reasonable to make the order.(2) In determining whether to make an order under this Part for maintenance and in fixing any amount to be paid pursuant to such an order, a court shall have regard to:(a) the income, property and financial resources of each party to the relationship (including the rate of any pension, allowance or benefit paid to either party to the relationship or the eligibility of either party to the relationship for a pension, allowance or benefit) and the physical and mental capacity of each party to the relationship for appropriate gainful employment,(b) the financial needs and obligations of each party to the relationship,(c) the responsibilities of either party to the relationship to support any other person,(d) the terms of any order made or proposed to be made under section 20 with respect to the property of the parties to the relationship, and(e) any payments made, pursuant to an order of a court or otherwise, in respect of the maintenance of a child or children in the care and control of the applicant.(3) In making an order for maintenance, a court shall ensure that the terms of the order will, so far as is practicable, preserve any entitlement of the applicant to a pension, allowance or benefit.s 27: Am 1999 No 4, Sch 1 [12] [14] [18] [20] [24].
28 Interim maintenance
Where, on an application by a party to a domestic relationship for an order under this Part for maintenance, it appears to a court that the applicant is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment by the respondent, pending the disposal of the application, of such periodic sum or other sums as the court considers reasonable.s 28: Am 1999 No 4, Sch 1 [12].
29 Effect of subsequent relationship or marriage
If the parties to a domestic relationship have ceased to live together, an application to a court for an order under this Part for maintenance may not be made by a party to the relationship who, at the time at which the application is made, has entered into a domestic relationship with another person or who, at that time, has married or remarried.s 29: Subst 1999 No 4, Sch 1 [25].
30 Duration of orders for periodic maintenance
(1) An order under this Part for periodic maintenance, being an order made where a court is satisfied solely as to the matters specified in section 27 (1) (a), may apply for such period as may be determined by the court, not exceeding the period expiring when the child to whom section 27 (1) (a) applies, or the younger or youngest such child, as the case may require:(a) except in the case of a child referred to in paragraph (b)—attains the age of 12 years, or(b) in the case of a physically handicapped child or mentally handicapped child—attains the age of 16 years.(2) An order under this Part for periodic maintenance, being an order made where a court is satisfied solely as to the matters specified in section 27 (1) (b), may apply for such period as may be determined by the court, not exceeding:(a) 3 years after the day on which the order is made, orwhichever is the shorter.(b) 4 years after the day on which the relationship ceased, or last ceased,(3) An order under this Part for periodic maintenance, being an order made where a court is satisfied as to the matters specified in section 27 (1) (a) and (b), may apply for such period as may be determined by the court, not exceeding the period permissible under subsection (1) or (2), whichever is the longer.(4) Nothing in this section or an order under this Part for periodic maintenance prevents such an order from ceasing to have effect pursuant to section 32 or 33.s 30: Am 1999 No 4, Sch 1 [26].
31 Effect of death of parties on application
Where, before an application under section 27 is determined, either party to the application dies, the application shall abate.
32 Cessation of order—generally
(1) An order under this Part for maintenance shall cease to have effect:(a) on the death of the person in whose favour the order was made,(b) on the death of the person against whom the order was made, or(c) on the marriage or remarriage of the person in whose favour the order was made.(2) Where, in relation to a person in whose favour an order under this Part for maintenance is made, a marriage or remarriage referred to in subsection (1) (c) takes place, that person shall, without delay, notify the person against whom the order was made of the date of the marriage or remarriage.(3) Any money paid pursuant to an order under this Part for periodic maintenance, being money paid in respect of a period occurring after a marriage or remarriage referred to in subsection (1) (c) takes place, may be recovered as a debt in a court of competent jurisdiction by the person who made the payment.s 32: Am 1999 No 4, Sch 1 [27] [28].
33 Cessation of order—child care responsibilities
Where a court makes an order under this Part for periodic maintenance, being an order made where the court is satisfied solely as to the matters specified in section 27 (1) (a), the order shall cease to have effect on the day on which the person in whose favour the order was made ceases to have the care and control of the child of the relationship, or the children of the relationship, as the case may require, in respect of whom the order was made.s 33: Am 1999 No 4, Sch 1 [27].
34 Recovery of arrears
Nothing in section 32 or 33 affects the recovery of arrears due pursuant to an order under this Part for maintenance at the time when the order ceased to have effect.
35 Variation etc of orders for periodic maintenance
(1) On an application by a party to a domestic relationship in respect of whom an order has been made under this Part for periodic maintenance, a court may:(a) subject to subsection (2), discharge the order,(b) suspend the operation of the order wholly or in part and either until further order or until a fixed time or the happening of some future event,(c) revive wholly or in part the operation of an order suspended under paragraph (b), or(d) subject to subsection (2), vary the order so as to increase or decrease any amount directed to be paid by the order or in any other manner.(2) A court shall not make an order discharging, increasing or decreasing an amount directed to be paid by an order unless it is satisfied that, since the order was made, or last varied:(a) the circumstances of the party to the relationship in whose favour the order was made have so changed,(b) the circumstances of the party to the relationship against whom the order was made have so changed, oras to justify its so doing.(c) the cost of living has changed to such an extent,(3) In satisfying itself for the purposes of subsection (2) (c), a court shall have regard to any changes that, during the relevant period, have occurred:(a) except as provided by paragraph (b), in the Consumer Price Index (All Groups Index) issued by the Australian Statistician, or(b) where a group of numbers or of amounts, other than those set out in the Index referred to in paragraph (a) (being a group of numbers or of amounts which relate to the price of goods and services, and which is issued by the Australian Statistician) is prescribed for the purposes of this paragraph—in the group of numbers or of amounts so prescribed.(4) A court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made, or last varied having regard to a change in the cost of living.(5) An order decreasing the amount of a periodic sum payable under an order may be expressed to be retrospective to such date as the court thinks fit.(6) For the purposes of this section, a court shall have regard to the provisions of sections 26 and 27.s 35: Am 1985 No 231, Sch 4 (2); 1999 No 4, Sch 1 [12] [18].
36 Other maintenance orders not to be varied
Except as provided by section 41, an order made under this Part for maintenance, not being an order for periodic maintenance, may not be varied.
37 Extension of orders for periodic maintenance
(1) Where a court has made an order under this Part for periodic maintenance for a period which is less than the maximum period permissible in accordance with section 30, the person in whose favour the order is made may, at any time before the expiration of that maximum period, apply to the court for an extension of the period for which the order applies.(2) A court shall not make an order pursuant to an application under subsection (1) unless it is satisfied that there are circumstances which justify its so doing.(3) An order extending the period for which an order under this Part for periodic maintenance applies may not be made so as to extend the period beyond the maximum period permissible under section 30 in relation to the secondmentioned order.(4) For the purposes of this section, a court shall have regard to the provisions of sections 26 and 27.s 37: Am 1999 No 4, Sch 1 [27].
Division 4 General
38 Orders etc of a court
(1) Without derogating from any other power of a court under this or any other Act or any other law, a court, in exercising its powers under this Part, may do any one or more of the following:(a) order the transfer of property,(b) order the sale of property and the distribution of the proceeds of sale in such proportions as the court thinks fit,(c) order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order,(d) order payment of a lump sum, whether in one amount or by instalments,(e) order payment of a weekly, fortnightly, monthly, yearly or other periodic sum,(f) order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs,(g) appoint or remove trustees,(h) make an order or grant an injunction:(i) for the protection of or otherwise relating to the property or financial resources of the parties to an application or either of them, oror both,(ii) to aid enforcement of any other order made in respect of an application,(i) impose terms and conditions,(j) make an order by consent,(j1) make an order in the absence of a party,(k) make any other order or grant any other injunction (whether or not of the same nature as those mentioned in the preceding paragraphs) which it thinks it is necessary to make to do justice.(2) A court may, in relation to an application under this Part:(a) make any order or grant any remedy or relief which it is empowered to make or grant under this or any other Act or any other law, and(b) make any order or grant any remedy or relief under this Part in addition to or in conjunction with making any other order or granting any other remedy or relief which it is empowered to make or grant under this Act or any other Act or any other law.s 38: Am 1985 No 231, Sch 4 (3).
39 Execution of instruments by order of a court
(1) Where:(a) an order under this Part has directed a person to execute a deed or instrument, andthe court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.(b) the person has refused or neglected to comply with the direction or, for any other reason, a court thinks it necessary to exercise the powers conferred on it under this subsection,(2) The execution of the deed or instrument by the person so appointed has the same force and validity as if it had been executed by the person directed by the order to execute it.(3) A court may make such order as it thinks just as to the payment of the costs and expenses of and incidental to the preparation of the deed or instrument and its execution.
40 Ex parte orders
(1) In the case of urgency, a court may make or grant, as the case may be, any one or more of the following:(a) an ex parte order pursuant to section 28,(b) an ex parte order or ex parte injunction for either or both of the purposes specified in section 38 (1) (h),(c) an ex parte injunction for any of the purposes specified in section 53.(2) An application under this section may be made orally or in writing or in such form as the court considers appropriate.(3) Where an application under this section is not made in writing, the court shall not make an order or grant an injunction under subsection (1) unless by reason of the extreme urgency of the case it considers that it is necessary to do so.(4) The court may give such directions with respect to the filing of a written application, the service of the application and the further hearing of the application as it thinks fit.(5) An order made or injunction granted under subsection (1) shall be expressed to operate or apply only until a specified time or the further order of the court.(6) Where a court makes an order or grants an injunction under subsection (1), it may give directions with respect to:(a) the service of the order or injunction and such other documents as it thinks fit, and(b) the hearing of an application for a further order.s 40: Am 1985 No 231, Sch 4 (4).
41 Variation and setting aside of orders
Where, on the application of a person in respect of whom an order referred to in section 20 or 27 has been made, a court is satisfied that:(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance,(b) in the circumstances that have arisen since the order was made, it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out, orthe court may, in its discretion, vary the order or set the order aside and, if it thinks fit, make another order in accordance with this Part in substitution for the order so set aside.(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order,
42 Transactions to defeat claims
(1) In this section, disposition includes a sale and a gift.(2) On an application for an order under this Part, a court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order relating to the application (being an order adjusting interests with respect to the property of the parties or either of them, an order for maintenance or an order for costs) or which, irrespective of intention, is likely to defeat any such order.(3) The court may, without limiting section 38, order that any property dealt with by any such instrument or disposition may be taken in execution or used or applied in, or charged with, the payment of such sums payable pursuant to an order adjusting interests with respect to the property of the parties or either of them or for maintenance or costs as the court directs, or that the proceeds of a sale shall be paid into court to abide its order.(4) A party or a person acting in collusion with a party may be ordered to pay the costs of any other party or of a bona fide purchaser or other person interested of and incidental to any such instrument or disposition and the setting aside or restraining of the instrument or disposition.
43 Interests of other parties
In the exercise of its powers under this Part, a court shall have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.
Part 4 Domestic relationship agreements and termination agreements
pt 4, hdg: Subst 1999 No 4, Sch 1 [29].
44 Definitions
(1) In this Part:domestic relationship agreement means an agreement between 2 persons (whether or not there are other parties to the agreement):(a) that is made in contemplation of their entering into a domestic relationship, or while they are in one, andand includes such an agreement that varies an earlier domestic relationship agreement and any agreement to which subsection (2) applies.(b) that makes provision with respect to financial matters, whether or not it also makes provision with respect to other matters,financial matters, in relation to parties to a domestic relationship, means matters with respect to any one or more of the following:(a) the maintenance of either or both of the parties,(b) the property of the parties or either of them,(c) the financial resources of the parties or either of them.termination agreement means an agreement between 2 persons, whether or not there are other parties to the agreement:(a) that is made in contemplation of the termination of a domestic relationship existing between them, or after the termination of such a relationship between them, andand includes such an agreement that varies an earlier domestic relationship agreement or termination agreement, but does not include an agreement to which subsection (2) applies.(b) that makes provision with respect to financial matters, whether or not it also makes provision with respect to other matters,(2) An agreement made in contemplation of the termination of a domestic relationship is taken to be a domestic relationship agreement if the relationship is not terminated within 3 months after the agreement was made.(3) The application of this Part extends to an agreement made before the re-enactment of this section by the Property (Relationships) Legislation Amendment Act 1999.s 44: Subst 1999 No 4, Sch 1 [30].
45 Entering into agreements
(1) Notwithstanding any rule of public policy to the contrary, two persons who are not married to each other may enter into a domestic relationship agreement or termination agreement.(2) Nothing in a domestic relationship agreement or termination agreement affects the power of a court to make an order with respect to the right to custody of, maintenance of or access to or otherwise in relation to the children of the parties to the agreement.s 45: Am 1999 No 4, Sch 1 [31]–[33].
46 Agreements subject to law of contract
Except as otherwise provided by this Part, a domestic relationship agreement or termination agreement shall be subject to and enforceable in accordance with the law of contract, including, without limiting the generality of this section, the Contracts Review Act 1980.s 46: Am 1999 No 4, Sch 1 [31] [32].
47 Effect of agreements in certain proceedings
(1) Where, on an application by a party to a domestic relationship for an order under Part 3, a court is satisfied:(a) that there is a domestic relationship agreement or termination agreement between the parties to the relationship,(b) that the agreement is in writing,(c) that the agreement is signed by the party against whom it is sought to be enforced,(d) that each party to the relationship was, before the time at which the agreement was signed by him or her, as the case may be, furnished with a certificate in or to the effect of the prescribed form by a solicitor which states that, before that time, the solicitor advised that party, independently of the other party to the relationship, as to the following matters:(i) the effect of the agreement on the rights of the parties to apply for an order under Part 3,(ii) whether or not, at that time, it was to the advantage, financially or otherwise, of that party to enter into the agreement,(iii) whether or not, at that time, it was prudent for that party to enter into the agreement,(iv) whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable, andthe court shall not, except as provided by sections 49 and 50, make an order under Part 3 in so far as the order would be inconsistent with the terms of the agreement.(e) that the certificates referred to in paragraph (d) are endorsed on or annexed to or otherwise accompany the agreement,(2) Where, on an application by a party to a domestic relationship for an order under Part 3, a court is satisfied that there is a domestic relationship agreement or termination agreement between the parties to the relationship, but the court is not satisfied as to any one or more of the matters referred to in subsection (1) (b), (c), (d) or (e), the court may make such order as it could have made if there were no domestic relationship agreement or termination agreement between the parties, but in making its order, the court, in addition to the matters to which it is required to have regard under Part 3, may have regard to the terms of the domestic relationship agreement or termination agreement.(3) A court may make an order referred to in subsection (2) notwithstanding that the domestic relationship agreement or termination agreement purports to exclude the jurisdiction of the court to make that order.s 47: Am 1999 No 4, Sch 1 [12] [14] [19] [21] [24] [31] [32] [34] [35].
48 Effect of certain exclusion provisions in agreements
Where a domestic relationship agreement or termination agreement does not satisfy any one or more of the matters referred to in section 47 (1) (b), (c), (d) or (e), the provisions of the agreement may, in proceedings other than an application for an order under Part 3, be enforced notwithstanding that the domestic relationship agreement purports to exclude the jurisdiction of a court under Part 3 to make such an order.s 48: Am 1999 No 4, Sch 1 [31] [32].
49 Variation of terms of domestic relationship agreements
(1) On an application by a party to a domestic relationship for an order under Part 3, a court may vary or set aside the provisions, or any one or more of the provisions, of a domestic relationship agreement (but not a termination agreement) made between the parties to the relationship, being a domestic relationship agreement which satisfies the matters referred to in section 47 (1) (b), (c), (d) and (e), where, in the opinion of the court, the circumstances of the parties have so changed since the time at which the agreement was entered into that it would lead to serious injustice if the provisions of the agreement, or any one or more of them, were, whether on the application for the order under Part 3 or on any other application for any remedy or relief under any other Act or any other law, to be enforced.(2) A court may, pursuant to subsection (1), vary or set aside the provisions, or any one or more of the provisions, of a domestic relationship agreement notwithstanding any provision of the agreement to the contrary.s 49: Am 1999 No 4, Sch 1 [12] [14] [19] [31] [32].
50 Effect of revocation etc of agreements
Without limiting or derogating from the provisions of section 46, on an application by a party to a domestic relationship for an order under Part 3, a court is not required to give effect to the terms of any domestic relationship agreement or termination agreement entered into by that party where the court is of the opinion:(a) that the parties to the relationship have, by their words or conduct, revoked or consented to the revocation of the agreement, or(b) that the agreement has otherwise ceased to have effect.s 50: Am 1999 No 4, Sch 1 [12] [14] [21] [31] [32].
51 Effect of death of party to relationship—periodic maintenance
(1) The provisions of a domestic relationship agreement or termination agreement requiring a party to a domestic relationship to pay periodic maintenance to the other party to the relationship shall, on the death of the firstmentioned party to the relationship, except in so far as the domestic relationship agreement or termination agreement otherwise provides, be unenforceable against his or her estate.(2) The provisions of a domestic relationship agreement or termination agreement requiring a party to the relationship to pay periodic maintenance to the other party to the relationship shall, on the death of the party entitled to such payments, be unenforceable by his or her estate.(3) Nothing in subsection (1) or (2) affects the recovery of arrears of periodic maintenance due and payable under a domestic relationship agreement or termination agreement at the date of death of either party.s 51: Am 1999 No 4, Sch 1 [12] [31] [32] [36]–[38].
52 Effect of death of party to domestic relationship
Except in so far as a domestic relationship agreement or termination agreement otherwise provides, the provisions of such an agreement entered into by parties to a domestic relationship relating to property and lump sum payments may, on the death of one of the parties, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.s 52: Am 1999 No 4, Sch 1 [7] [19] [31] [32] [39].
Part 5 Domestic violence and harassment
53 Granting of injunctions
A court may, on an application made to it by a party to a domestic relationship or in any proceedings between parties to a domestic relationship, whether under Part 3 or otherwise, grant an injunction:(a) for the personal protection of a party to the relationship or of a child ordinarily residing within the same household as the parties to the relationship or who at any time ordinarily so resided,(b) restraining a party to the relationship:(i) from entering the premises in which the other party to the relationship resides, or(ii) from entering a specified area, being an area in which the premises in which the other party to the relationship resides are situated,(c) restraining a party to the relationship:(i) from entering the place of work of the other party to the relationship, or(ii) from entering the place of work of a child referred to in paragraph (a), or(d) relating to the use or occupancy of the premises in which the parties to the relationship reside.s 53: Am 1999 No 4, Sch 1 [40]–[43].
54 Failure to comply with injunction
(1) A person against whom an injunction under section 53 has been granted and who:(a) has been served personally, in the prescribed manner, with a copy of the order under section 53 by which the injunction was granted, andshall be guilty of an offence and liable on conviction before a Magistrate to imprisonment for 6 months.(b) after having been so served, knowingly fails to comply with a restriction or prohibition specified in the order,(2) Nothing in subsection (1) affects the power of a court to punish a person for contempt of court.
55 Other powers of courts not affected
Nothing in this Part derogates from or affects any power of a court under any other Act or law with respect to any act, matter or thing to which this Part applies.
Part 6 Miscellaneous
56 Declaration as to existence of domestic relationship
(1) A person who alleges that a domestic relationship exists or has existed between the person and another named person or between 2 named persons may apply to the Supreme Court for a declaration as to the existence of a domestic relationship between the persons.(2) If, on an application under subsection (1), it is proved to the satisfaction of the Court that a domestic relationship exists or has existed, the Court may make a declaration (which shall have effect as a judgment of the Court) that persons named in the declaration have or have had a domestic relationship.(3) Where the Court makes a declaration under subsection (2), it shall state in its declaration that:(a) the domestic relationship existed as at a date specified in the declaration, oror both.(b) the domestic relationship existed between dates specified in the declaration,(4) Where any person whose interests would, in the opinion of the Court, be affected by the making of a declaration under subsection (2) is not present or represented, and has not been given the opportunity to be present or represented, at the hearing of an application under subsection (1), the Court may, if it thinks that that person ought to be present or represented at the hearing, adjourn the hearing in order to enable that person to be given an opportunity to be so present or represented.(5) A declaration may be made under subsection (2) whether or not the person or either of the persons named by the applicant as a party or parties to a domestic relationship is alive.(6) While a declaration made under subsection (2) remains in force, the persons named in the declaration shall, for all purposes, be presumed conclusively to have had a domestic relationship as at the date specified in the declaration or between the dates so specified, or both, as the case may require.(7) Where a declaration has been made under subsection (2) and, on the application of any person who applied or could have applied for the making of the declaration or who is affected by the declaration, it appears to the Court that new facts or circumstances have arisen that have not previously been disclosed to the Court and could not by the exercise of reasonable diligence have previously been disclosed to the Court, the Court may make an order annulling the declaration, and the declaration shall thereupon cease to have effect, but the annulment of the declaration shall not affect anything done in reliance on the declaration before the making of the order of annulment.(8) Where any person whose interests would, in the opinion of the Court, be affected by the making of an order under subsection (7) is not present or represented and has not been given an opportunity to be present or represented, at the hearing of an application made under that subsection, the Court may, if it thinks that that person ought to be present or represented at the hearing, adjourn the hearing in order to enable that person to be given an opportunity to be so present or represented.(9) Where the Court makes an order under subsection (7) annulling a declaration made under subsection (2), it may, if it thinks that it would be just and equitable to do so, make such ancillary orders (including orders varying rights with respect to property or financial resources) as may be necessary to place as far as practicable any person affected by the annulment of the declaration in the same position as that person would have been in if the declaration had not been made.s 56: Am 1999 No 4, Sch 1 [15] [44].
57 Enforcement of certain Supreme Court orders by Local Courts
The regulations may make provision for or with respect to the enforcement by a Local Court of an order under this Act of the Supreme Court for the payment of money.
58 Enforcement of certain orders for payment of money
The provisions of Division 6 of Part 4 of the Local Courts (Civil Claims) Act 1970, and of Parts 5 and 7 of that Act apply to and in respect of:(a) an order under this Act of a Local Court for the payment of money, andin the same way as they apply to and in respect of a judgment of a Local Court under that Act.(b) an order under this Act of the Supreme Court for the payment of money, being an order which, pursuant to the regulations, may be enforced by a Local Court,s 58: Am 1985 No 231, Sch 4 (5).
59 Enforcement of other orders etc
(1) If a court having jurisdiction under this Act is satisfied that a person has knowingly and without reasonable cause contravened or failed to comply with an order made or injunction granted under this Act (not being an order for the payment of money), the court may:(a) order the person to pay a fine not exceeding 20 penalty units,(b) require the person to enter into a recognizance, with or without sureties, in such reasonable amount as the court thinks fit, that the person will comply with the order or injunction, or order the person to be imprisoned until the person enters into such a recognizance or until the expiration of 3 months, whichever first occurs,(c) order the person to deliver up to the court such documents as the court thinks fit, and(d) make such other orders as the court considers necessary to enforce compliance with the order or injunction.(2) Nothing in subsection (1) affects the power of a court to punish a person for contempt of court.(3) Where an act or omission referred to in subsection (1) is an offence against any other law, the person committing the offence may be prosecuted and convicted under that law, but nothing in this section renders any person liable to be punished twice in respect of the same offence.s 59: Am 1992 No 112, Sch 1.
60 Rules of court
(1) For the purpose of regulating any proceedings under this Act in or before the Supreme Court, rules of court may be made under the Supreme Court Act 1970, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2) Subsection (1) does not limit the rule-making powers conferred by the Supreme Court Act 1970.
61 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2) A provision of a regulation may:(a) apply generally or be limited in its application by reference to specified exceptions or factors,(b) apply differently according to different factors of a specified kind, oror may do any combination of those things.(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,
Nothing in the Property (Relationships) Legislation Amendment Act 1999 is to be taken to approve, endorse or initiate any change in the marriage relationship, which by law must be between persons of the opposite sex, nor entitle any person to seek to adopt a child unless otherwise entitled to by law.s 62: Ins 1999 No 4, Sch 1 [45].