Part 3 Proceedings for financial adjustment
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.
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.
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, or(ii) has the care and control of a child of the respondent,and that the failure to make the order would result in serious injustice to the applicant.
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.
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.
Division 2 Adjustment of interests with respect to property
(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.
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, and(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,the 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.(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.
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.
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.
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, and(b) that, notwithstanding the death of the deceased party, it is still appropriate to adjust those interests,the court may make an order under this Part in respect of that property.(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.
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.
(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.
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.
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.
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, or(b) 4 years after the day on which the relationship ceased, or last ceased,whichever is the shorter.(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.
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.
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.
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, or(c) the cost of living has changed to such an extent,as to justify its so doing.(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.
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.
(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, or(ii) to aid enforcement of any other order made in respect of an application,or both,(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.
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, and(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,the 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.(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.
(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.
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, or(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,the 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.
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.(3A) Without limiting subsection (3), a court making an order with respect to property under that subsection may also order that any interest (including a security interest or transitional security interest to which the Personal Property Securities Act 2009 of the Commonwealth applies) is extinguished if the court is satisfied that it is appropriate to do so to prevent the defeat of an order referred to in subsection (2).(3B) An order under subsection (3A) operates to extinguish an interest to which it relates according to its tenor.(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.
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.