AUSTRALIA Law and Practice Contributed by: Paul Doolan, Melinda Winning, Carly Middleton and Jeff Marhinin, Barkus Doolan Winning
maintenance in relation to a de facto relationship is if the parties to that de facto relationship were ordinarily resident in Australia when the relation - ship broke down. Other Requirements Including Length of De Facto Relationship, Birth of a Child Above and beyond the geographic requirement, a court may only make an order for property set - tlement or spouse maintenance in a de facto relationship if it is satisfied: • that the period, or the total of the periods, of the de facto relationship is at least two years; • that there is a child of the de facto relation - ship; • that a party to the relationship, being the applicant, made substantial contributions and that a failure to make such an order or decla - ration would cause them serious injustice; or • that the de facto relationship is or was reg - istered under a prescribed law of a state or territory of Australia. If parties to a de facto relationship marry each other, then their rights to any de facto property settlement or spousal maintenance cease and their rights are instead governed by the marital provisions of the Australian Family Law Act. Effect of a Binding Financial Agreement Australian law enables parties to make bind - ing financial agreements (BFAs) between them, whether before, during or even after a marriage has ended, which cover any or all of their prop - erty and or spousal maintenance rights. Strict rules apply to the making of those BFAs (see 2.5 Prenuptial and Postnuptial Agreements ). If a BFA is recognised by Australian law as bind - ing and has not been set aside, then the effect of such a binding agreement is that the provisions
of the Family Law Act do not apply to any of the following matters insofar as the agreement covers them: • the maintenance of one of the parties; • the property of the parties or either of the par - ties; and • the financial resources of the parties or either of the parties. Applications Contesting Financial Jurisdiction of Australian Courts A respondent to proceedings for property settle - ment or spousal maintenance in Australia may challenge the jurisdiction of the Australian court to hear and determine that case. The Australian court can make a preliminary rul - ing on the question of whether or not it has juris - diction to hear and determine some or all of the proceedings. It is a prerequisite to the making of any order for property settlement or spousal maintenance that the court first be satisfied that it has jurisdiction. Applications to Stay Financial Proceedings in Australia on Forum Grounds It is not uncommon for the courts of one or more country to have jurisdiction in respect of matters arising out of a marriage or de facto relationship. The respondent to financial proceedings in Aus - tralia (whether between married or de facto par - ties) who has instituted proceedings in the courts of a foreign jurisdiction can make an applica - tion seeking a permanent stay of the Australian proceedings on the grounds that Australia is a clearly inappropriate forum to determine some or all of those matters. Leaving aside matters involving the courts of Australia and New Zealand (which are governed
33
CHAMBERS.COM
Powered by FlippingBook