Domestic Partners Property Act 1996

This Act may be cited as the Domestic Partners Property Act 1996.

In this Act—

certified domestic partnership agreement—see subsection (2);

child of domestic partners means—

a child of which the domestic partners are the natural parents; or

a child of the female partner whose male partner is presumed to be the father of the child under an Australian law; or

a child adopted by the partners;

close personal relationship means the relationship between 2 adult persons (whether or not related by family and irrespective of their sex or gender identity) who live together as a couple on a genuine domestic basis, but does not include—

the relationship between a legally married couple; or

a relationship where 1 of the persons provides the other with domestic support or personal care (or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind;

Note—

Two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them.

court means—

the Supreme Court; or

the District Court; or

if an application relates to property valued at $100 000 or less, the Magistrates Court;

domestic partner means—

a person in a registered relationship, and includes—

a person who is about to enter into a registered relationship; or

a person who has been in a registered relationship; or

a person who lives in a close personal relationship, and includes—

a person who is about to enter a close personal relationship; or

a person who has lived in a close personal relationship;

domestic partnership agreement means an agreement about—

the division of property on the termination of a domestic partnership; or

any other matter (financial or otherwise) related to a domestic partnership;

lawyer means a person who is admitted as a barrister and solicitor of the Supreme Court and holds a current practising certificate;

lawyer's certificate means a certificate signed by a lawyer, and endorsed on an agreement, certifying that—

the lawyer explained the legal implications of the agreement to a party to the agreement, named in the certificate, in the absence of the other party to the agreement; and

the party gave the lawyer apparently credible assurances that the party was not acting under coercion or undue influence; and

the party signed the agreement in the lawyer's presence;

property of a person includes—

a prospective entitlement or benefit under a superannuation or retirement benefit scheme;

property held under a discretionary trust that could, under the terms of the trust, be vested in the person or applied for the person's benefit;

property over which the person has a direct or indirect power of disposition and which may be used or applied for the person's benefit;

any other valuable benefit;

registered relationship means a relationship that is registered under the Relationships Register Act 2016, and includes a corresponding law registered relationship under that Act.

For the purposes of this Act, a domestic partnership agreement is a certified domestic partnership agreement if—

the agreement contains a provision (the warranty of asset disclosure) under which each party to the agreement warrants that he or she has disclosed all relevant assets to the other; and

—

the signature of each party to the agreement is attested by a lawyer's certificate; and

each lawyer's certificate is given by a different lawyer.

This Act does not apply to—

a domestic partnership (other than a domestic partnership that was a de facto relationship) that ended before the commencement of this section; or

a de facto relationship that ended before 16 December 1996.

Note—

The Domestic Partners Property Act 1996 came into operation on 16 December 1996 as the De Facto Relationships Act 1996.

In this section—

de facto relationship means the relationship between a man and a woman, who although not legally married to each other, live together on a genuine domestic basis as husband and wife.

Domestic partners may make a domestic partnership agreement.

A domestic partnership agreement must—

be in writing; and

be signed by each party to the agreement.

A domestic partnership agreement is subject to, and enforceable under, the law of contract.

A domestic partnership agreement may be varied or revoked by a written or oral agreement.

However, if a domestic partnership agreement is a certified domestic partnership agreement, it may only be varied by a certified domestic partnership agreement.

If a court is satisfied that the enforcement of a domestic partnership agreement would result in serious injustice, the court may set aside or vary the agreement to avoid the injustice.

A court may exercise its powers under this section—

on the court's own initiative; or

on the application of either party to the domestic partnership agreement.

However, a court cannot set aside or vary a domestic partnership agreement under this section if—

the agreement provides for the exclusion of the court's power to set aside or vary the agreement; and

the agreement is a certified domestic partnership agreement.

After a domestic partnership ends, either of the domestic partners may apply to a court for the division of property.

However, an application for the division of property may only be made if—

the applicant or respondent is resident in the State when the application is made; and

the applicant and respondent were resident in the State for the whole or a substantial part of the period of the relationship; and

the domestic partnership existed for at least 3 years or there is a child of the domestic partners.

An application for the division of property must be made within one year after the end of the domestic relationship unless the court, after considering the interests of both domestic partners, is satisfied that extension of this period of limitation is necessary to avoid serious injustice to the applicant.

An application for the division of property may be made or continued by or against the legal personal representative of a deceased domestic partner.

However, an application against the legal personal representative of a deceased domestic partner may only relate to property that is undistributed at the date of the application.

On an application for the division of property after the end of a domestic partnership, the court may make such orders as it considers necessary to divide between the domestic partners the property of either or both partners in a way that is just and equitable.

For example, the court may make orders for—

the transfer of property from one domestic partner to the other; or

the sale of property and the division of the net proceeds between the domestic partners in proportions decided by the court; or

the payment by one domestic partner of a lump sum to the other.

In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the court—

must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the domestic partners to—

the acquisition, conservation or improvement of property of either or both partners; or

the financial resources of either or both partners; and

must consider the contributions (including homemaking or parenting contributions) made by either of the domestic partners to the other partner or to children of the partners or either of them; and

must have regard to the terms of any relevant domestic partnership agreement; and

may have regard to other relevant matters.

If a relevant domestic partnership agreement—

is a certified domestic partnership agreement; and

provides for the exclusion of the court's power to set aside or vary the agreement, an order for the division of property under this Part must be consistent with the terms of the agreement.

In proceedings under this Part, the court must (as far as practicable) finally resolve questions about the division of property between the domestic partners and avoid further proceedings between them.

If the aggregate amount claimed by the applicant on an application under this Part is $6 000 or less, the application is a minor statutory proceeding1.

To ascertain the amount claimed by an applicant on an application under this Part, all monetary amounts and the value of interests in property claimed must be aggregated.

Note—

1 A minor statutory proceeding includes a proceeding declared by statute to be a minor statutory proceeding. (See definition of minor statutory proceeding in section 3(1) of the Magistrates Court Act 1991.) The characterisation of a proceeding as a minor statutory proceeding means that (subject to certain rules stated in section 3 of the Magistrates Court Act 1991) the proceeding is to be dealt with under the special rules for minor civil actions prescribed in Division 2 of Part 5 of the Magistrates Court Act 1991.