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Where am I now? Lawlink > Law Reform Commission > Publications > Discussion Paper 44 (2002) - Review of the Property (Relationships) Act 1984 (NSW)
Discussion Paper 44 (2002) - Review of the Property (Relationships) Act 1984 (NSW) Contents Terms of reference 1. INTRODUCTION
Developments since 1983 Property (Relationships) Legislation Amendment Act Social Issues Committee
Law needs updating COMMISSION’S PROGRESS TO DATE
Seminars THE PURPOSE OF THE PROPOSALS 2. RELATIONSHIPS AND LEGAL CONSEQUENCES
De facto relationships The legal meaning of “de facto relationship” The distinction in treatment between marriage and de facto relationships RELATIONSHIPS LAW IN OTHER JURISDICTIONS
Internationally
Should de facto and close personal relationships be regulated by the same provisions? Cohabitation requirement Registering relationships 3. RECOGNITION OF FUNCTIONAL PARENT/CHILD RELATIONSHIPS INTRODUCTION TERMINOLOGY CONSTITUTIONAL FRAMEWORK TYPES OF FUNCTIONAL PARENT/CHILD RELATIONSHIPS
Child with one legal parent plus a functional parent Child conceived through artificially inseminated donor sperm, with consent of birth mother’s female partner
Effect of the Property (Relationships) Legislation Amendment Act 1999 (NSW) Compensation and damages Miscellaneous
Parenting orders under the FLA
Day-to-day life Victims compensation Child support Intestacy and family provision Care of child when a legal parent dies Human Tissue Act 1983 (NSW) Coroners Act 1980 (NSW) Distribution of superannuation funds following death
Status of consenting female partner of woman who conceives a child through artificial insemination Recognition for specific purposes 4. FINANCIAL AGREEMENTS OVERVIEW
LRC Report 36 Expanded coverage of the PRA Pre-nuptial agreements under the Family Law Act
Who makes financial agreements? Advantages of making financial agreements Criticisms of private ordering Support for legally binding financial agreements
Should solicitors be required to give financial advice? Should financial advice be required for an agreement to be binding?
Common law grounds to set aside or vary a contract Serious injustice under section 49 Revocation of the agreement
Non-disclosure of assets Impracticability Powers to vary or set aside consent orders
Rights of third parties Should agreements be subject to a “sunset clause”? 5. ADJUSTMENT OF PROPERTY INTERESTS BACKGROUND
CURRENT APPROACH UNDER THE PRA
Interpreting s 20
Failure to allow consideration of future needs Homemaker contributions undervalued
Domestic violence
ACT and Tasmania Queensland New Zealand Developments in equity
Option 1: Family Law Act model Option 2: Queensland model Option 3: New Zealand Model 6. PROPERTY ADJUSTMENT PROCEEDINGS: OTHER RELATED ISSUES THRESHOLD TESTS TO INVOKE JURISDICTION
Is there a close personal relationship between the parties? Age requirement Two year cohabitation period Exceptions to the minimum cohabitation requirement Retrospectivity
Can contributions that were made prior to the domestic relationship be taken into account? Can contributions that were made in earlier periods of cohabitation be taken into account?
Inheritances Gambling wins Loans Gifts Shares in businesses How is property defined in other jurisdictions? CONSENT ORDERS
7.SUPERANNUATION INTRODUCTION THE TREATMENT OF SUPERANNUATION UNDER THE ACT
Family Law Act jurisprudence South Australian experience
Other types of financial resources Orders available to the court
Current policy approach under the Family Law Act How the Family Court deals with superannuation Problems with the Family Court’s approach
Superannuation as a proportion of household wealth Disparate entitlements to superannuation Empirical research
Splitting superannuation interests Flagging superannuation interests Agreements Court orders Information to parties Other significant provisions Overseas jurisdictions
Option 2: Parallel laws Option 3: Retain status quo 8. PARTNER MAINTENANCE INTRODUCTION PARTNER MAINTENANCE UNDER THE PRA
Limited right to maintenance under section 27 Duration of maintenance The effect of repartnering on maintenance The type of maintenance: periodic or lump sum? Interim/urgent maintenance Power to discharge or vary an award Incidence of partner maintenance Private maintenance agreements
Overseas jurisdictions
Should there be a distinction between married and de facto partners for the purposes of maintenance?
Option 2: Broaden the current provisions Option 3: FLA approach Option 4: Integrative approach 9. DISPUTE RESOLUTION INTRODUCTION
District Court Local Court
The relevance of the Federal experience The Family Court of Australia The Federal Magistrate’s Court
Queensland Northern Territory South Australia Victoria Western Australia GENERAL ISSUES FOR DISCUSSION
District Court Local Court
Court annexed mediation services Simpler practice and procedure Costs rules
Option 2: Establish a specialist division within the District Court Option 3: Maintain a modified version of the status quo TABLE OF LEGISLATION TABLE OF CASES BIBLIOGRAPHY |
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