This Act shall come into operation on a date to be fixed by Proclamation.
s 3Repeal and saving
(1)
The Matrimonial Causes Act 1959, the Matrimonial Causes Act 1965 and the Matrimonial Causes Act 1966 are repealed.
(2)
Notwithstanding the repeal effected by subsection (1):
(a)
the validity of a decree made before the commencement of the Matrimonial Causes Act 1959 by virtue of the Imperial Act entitled the Matrimonial Causes (War Marriages) Act, 1944 or Part I of the Matrimonial Causes (War Marriages) Act 1947 of New Zealand and in force immediately before the commencement of this Act shall continue to be recognised in all courts in Australia;
(b)
a decree of the Supreme Court of a State or Territory made before the commencement of the Matrimonial Causes Act 1959 in the exercise of jurisdiction invested or conferred by the Matrimonial Causes Act 1945, or that Act as amended by the Matrimonial Causes Act 1955, and in force immediately before the commencement of this Act shall continue to have effect throughout Australia; and
(c)
a decree of the Supreme Court, or of a court of summary jurisdiction, of a State or Territory:
(i)
made before the commencement of this Act in the exercise of jurisdiction invested or conferred by the repealed Act, or in a matrimonial cause or proceedings for a separation order instituted under the law of that State or Territory, being a decree that was in force immediately before the commencement of this Act; or
(ii)
made after the commencement of this Act in proceedings to which subsection 9(1) applied;
shall have, or continue to have, effect throughout Australia, and, except in the case of:
(iii)
a decree of nullity of marriage made on the ground that the marriage was voidable;
(iv)
a decree of judicial separation;
(v)
a decree of restitution of conjugal rights;
(vi)
a decree of jactitation of marriage; or
(vii)
a separation order;
this Act applies to and in relation to the decree as if the decree had been made under this Act.
(3)
For the purposes of paragraph (2)(c), a purported decree to which section 5 of the Matrimonial Causes Act 1971 applied made in a State shall be deemed to be a decree of the Supreme Court of that State made in the exercise of jurisdiction invested by the repealed Act.
s 4AADe facto relationships
Meaning of de facto relationship
(1)
A person is in a de facto relationship with another person if:
(a)
the persons are not legally married to each other; and
(b)
the persons are not related by family (see subsection (6)); and
(c)
having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2)
Those circumstances may include any or all of the following:
(a)
the duration of the relationship;
(b)
the nature and extent of their common residence;
(c)
whether a sexual relationship exists;
(d)
the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)
the ownership, use and acquisition of their property;
(f)
the degree of mutual commitment to a shared life;
(g)
whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)
the care and support of children;
(i)
the reputation and public aspects of the relationship.
(3)
No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)
A court determining whether a de facto 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.
(5)
For the purposes of this Act:
(a)
a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)
a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6)
For the purposes of subsection (1), 2 persons are related by family if:
(a)
one is the child (including an adopted child) of the other; or
(b)
one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c)
they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
s 4ABDefinition of family violence etc
(1)
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)
Examples of behaviour that may constitute family violence include (but are not limited to):
(a)
an assault; or
(b)
a sexual assault or other sexually abusive behaviour; or
(c)
stalking; or
(d)
repeated derogatory taunts; or
(e)
intentionally damaging or destroying property; or
(f)
intentionally causing death or injury to an animal; or
(g)
economic or financial abuse; or
(i)
preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)
unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(2A)
For the purposes of paragraph (2)(g), examples of behaviour that might constitute economic or financial abuse of a family member include (but are not limited to) the following:
(a)
unreasonably denying the family member the financial autonomy that the family member would otherwise have had, such as by:
(i)
forcibly controlling the family member’s money or assets, including superannuation; or
(ii)
sabotaging the family member’s employment or income or potential employment or income; or
(iii)
forcing the family member to take on a financial or legal liability, or status; or
(iv)
forcibly or without the family member’s knowledge, accumulating debt in the family member’s name;
(b)
unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or the family member’s child (including at a time when the family member is entirely or predominantly dependent on the person for financial support);
(c)
coercing a family member (including by use of threats, physical abuse or emotional or psychological abuse):
(i)
to give or seek money, assets or other items as dowry; or
(ii)
to do or agree to things in connection with a practice of dowry;
(d)
hiding or falsely denying things done or agreed to by the family member, including hiding or falsely denying the receipt of money, assets or other items, in connection with a practice of dowry.
(3)
For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)
Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)
overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)
seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)
comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)
cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)
being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
s 4AThird party proceedings to set aside financial agreement
(1)
For the purposes of paragraph (eab) of the definition of matrimonial cause in subsection 4(1), third party proceedings means proceedings between:
(a)
any combination of:
(i)
the parties to a financial agreement; and
(ii)
the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives); and
(b)
any of the following:
(i)
a creditor;
(ii)
if a creditor is an individual who has died—the legal personal representative of the creditor;
(iii)
a government body acting in the interests of a creditor;
being proceedings for the setting aside of the financial agreement on the ground specified in paragraph 90K(1)(aa).
(1A)
For the purposes of paragraph (eab) of the definition of matrimonial cause in subsection 4(1), third party proceedings also means proceedings between:
(a)
any combination of:
(i)
the parties to a financial agreement; and
(ii)
the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives); and
(b)
either:
(i)
another person who is a party to a de facto relationship with one of the spouse parties to the financial agreement; or
(ii)
the legal personal representative of that other person if that person has died;
being proceedings for the setting aside of the financial agreement on the ground specified in paragraph 90K(1)(ab).
(2)
In this section:
creditor means:
(a)
a creditor of a party to the financial agreement; or
(b)
a person who, at the commencement of the proceedings, could reasonably have been foreseen by the court as being reasonably likely to become a creditor of a party to the financial agreement.
government body means:
(a)
the Commonwealth, a State or a Territory; or
(b)
an official or authority of the Commonwealth, a State or a Territory.
s 4BThird party proceedings to set aside Part VIIIAB financial agreement
(1)
For the purposes of paragraph (f) of the definition of de facto financial cause in subsection 4(1), third party proceedings means proceedings between:
(a)
any combination of:
(i)
the parties to a Part VIIIAB financial agreement; and
(ii)
the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives); and
(b)
any of the following:
(i)
a creditor;
(ii)
if a creditor is an individual who has died—the legal personal representative of the creditor;
(iii)
a government body acting in the interests of a creditor;
being proceedings for the setting aside of the Part VIIIAB financial agreement on the ground specified in paragraph 90UM(1)(b).
(2)
For the purposes of paragraph (f) of the definition of de facto financial cause in subsection 4(1), third party proceedings also means proceedings between:
(a)
any combination of:
(i)
the parties to a Part VIIIAB financial agreement; and
(ii)
the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives); and
(b)
either:
(i)
another person who is a party to a de facto relationship with one of the spouse parties to the Part VIIIAB financial agreement; or
(ii)
the legal personal representative of that other person if that person has died;
being proceedings for the setting aside of the Part VIIIAB financial agreement on the ground specified in paragraph 90UM(1)(c).
(3)
For the purposes of paragraph (f) of the definition of de facto financial cause in subsection 4(1), third party proceedings also means proceedings between:
(a)
any combination of:
(i)
the parties to a Part VIIIAB financial agreement; and
(ii)
the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives); and
(b)
either:
(i)
another person who is a party to a marriage with one of the spouse parties to the Part VIIIAB financial agreement; or
(ii)
the legal personal representative of that other person if that person has died;
being proceedings for the setting aside of the Part VIIIAB financial agreement on the ground specified in paragraph 90UM(1)(d).
(4)
In this section:
creditor means:
(a)
a creditor of a party to the Part VIIIAB financial agreement; or
(b)
a person who, at the commencement of the proceedings, could reasonably have been foreseen by the court as being reasonably likely to become a creditor of a party to the Part VIIIAB financial agreement.
government body means:
(a)
the Commonwealth, a State or a Territory; or
(b)
an official or authority of the Commonwealth, a State or a Territory.
s 4CMeaning of proceeds of crime authority
Scope
(1)
This section sets out the meaning of proceeds of crime authority in relation to:
(a)
a restraining order or a forfeiture order, or an application for a forfeiture order, under the Proceeds of Crime Act 2002 (or any proceedings, orders, powers, functions or duties under this Act related to, or arising out of, such an order or application); and
(b)
a freezing order under the Proceeds of Crime Act 2002 (or any proceedings, orders, powers, functions or duties under this Act related to, or arising out of, such a freezing order); and
(c)
a proceeds of crime order, or an application for a forfeiture order, under a State or Territory proceeds of crime law (or any proceedings, orders, powers, functions or duties under this Act related to, or arising out of, such an order or application).
Note:
Freezing orders, restraining orders and forfeiture orders made under the Proceeds of Crime Act 2002 or a State or Territory proceeds of crime law are proceeds of crime orders (see subsection 4(1)).
Commonwealth proceeds of crime authorities
(2)
For the purposes of paragraph (1)(a), proceeds of crime authority means the responsible authority for the relevant restraining order, forfeiture order or forfeiture application under the Proceeds of Crime Act 2002.
Note:
Under that Act, the responsible authority is the Commissioner of the Australian Federal Police or the Director of Public Prosecutions (see the definitions of responsible authority and proceeds of crime authority in section 338 of that Act). Responsibility can be transferred between these authorities (see section 315B of that Act).
(3)
For the purposes of paragraph (1)(b), proceeds of crime authority means:
(a)
the Commissioner of the Australian Federal Police; or
(b)
the Director of Public Prosecutions.
State or Territory proceeds of crime authorities
(4)
For the purposes of paragraph (1)(c), in relation to a provision of this Act, proceeds of crime authority means a person or body prescribed by the regulations to be the proceeds of crime authority for that provision in relation to:
(a)
a class of proceeds of crime order, under the relevant State or Territory proceeds of crime law, prescribed by the regulations, that includes the relevant proceeds of crime order; or
(b)
a class of forfeiture application, under the relevant State or Territory proceeds of crime law, prescribed by the regulations, that includes the relevant forfeiture application.
Note:
The regulations may prescribe a proceeds of crime authority in relation to a proceeds of crime order under a State or Territory proceeds of crime law by reference to any matter, including (for example) by reference to who applied for the order.
s 5Debtor subject to a personal insolvency agreement
For the purposes of this Act, if:
(a)
a person who is a debtor (within the meaning of Part X of the Bankruptcy Act 1966) executes a personal insolvency agreement; and
(b)
the agreement has not ended (within the meaning of the Bankruptcy Act 1966);
the person is a debtor subject to the personal insolvency agreement.
s 6Polygamous marriages
For the purpose of proceedings under this Act, a union in the nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage.
s 7Extension of Act to certain Territories
This Act extends to the following Territories:
(a)
Norfolk Island;
(b)
the Territory of Christmas Island;
(c)
the Territory of Cocos (Keeling) Islands.
s 7AApplication of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
