Here are some additional maintenance agreement provisions under the Family Law Act 1975. A maintenance agreement is a legally binding contract between separating or divorcing couples. This legal document sets out how they will financially support each other after the breakdown of their relationship.
The Family Law Act provides for the registration and approval of maintenance agreements. This also includes the enforcement of maintenance agreements. Separated or divorced couples may register maintenance agreements in the Federal Circuit and Family Court of Australia (FCFCOA) or in a State or Territory court.
After the registration of a maintenance agreement, it will be enforceable in the same way as a court order. Read on to know more about additional maintenance agreement provisions.
Section 87: Operation of Maintenance Agreements Entered Into in Substitution for Rights Under Act
Section 87 of additional maintenance agreement provisions deals with the approval of maintenance agreements. These agreements make provision to operate in substitution for the rights of the parties to the agreement under the Act. This section sets out the requirements for approval of a maintenance agreement. This includes:
- The agreement must be in writing.
- Both parties must sign the agreement.
- The court must approve the agreement.
What happens if the court approves a maintenance agreement? If this happens, any orders that relate to the financial matters dealt in the agreement will cease to have effect.
Once the court approves the maintenance agreement, any previous court orders regarding the specified financial matters become invalid. Furthermore, the court cannot issue new orders regarding those matters unless the approval of the agreement is cancelled. This means that:
- The terms of the agreement will be binding on the parties; and
- The court will not be able to make any further orders in relation to those financial matters.
Additional Maintenance Agreements: Additional Provisions for Section 87
Section 87 also sets out the grounds on which the court may revoke the approval of a maintenance agreement, including if:
- The agreement was obtained by fraud.
- The parties to the agreement desire the revocation of the approval.
- The agreement is void, voidable or unenforceable.
- It is impracticable for the parties to carry out the agreement.
If the court revokes the approval of a maintenance agreement, the following may happen:
- The agreement will cease to be in force; and
- The court may make orders to preserve or adjust the rights of the parties to the agreement.
Section 87A: Specification in Maintenance Agreements of Payments Etc. For Maintenance Purposes
Section 87A of additional maintenance agreement provisions deals with the specification in maintenance agreements of maintenance payments. Maintenance agreements that have the effect of requiring payments or transfers of property must specify the following:
- That the agreement is an agreement to which this section applies.
- The person or persons for whose maintenance provision is made by the payment, transfer or settlement.
- The portion of the payment, or the value of the portion of the property, attributable to the provision of maintenance for that person or each of those persons, as the case may be.
What happens if a maintenance agreement does not specify that the payments or transfers of property are being made for the purpose of maintenance? If this is the case then the court will not consider those payments or transfers to be maintenance payments.
88: Enforcement of Maintenance Agreements
Section 88 of additional maintenance agreement provisions deal with the enforcement of maintenance agreements. Here’s a breakdown of each subsection:
Section 88(1) states that a registered maintenance agreement, or one that is deemed to have been registered in a court, may be enforced as if it were a court order. However, Section 88(2) provides that 88(1) does not apply in relation to maintenance agreements that have been approved under Section 87.
89: Overseas Maintenance Agreements
Section 89 of additional maintenance agreement provisions deal with the application of the Act to overseas maintenance agreements.
An overseas maintenance agreement is an agreement between two people who are separated or divorced. The agreement sets out how they will support each other financially, but the agreement was made in another country.
The section allows the regulations to make provision for the application of sections 86 and 87 to overseas maintenance agreements. Sections 86 and 87 of the Act deal with the registration and approval of maintenance agreements, and the enforcement of maintenance agreements.
The regulations can also make provision for the transmission of overseas maintenance agreements to courts or authorities in other countries. This is so that the agreements can be enforced in those countries.The regulations can also make provision for other matters relating to overseas maintenance agreements, such as the modification of the terms of the agreements.
89A: Institution of Spousal Maintenance Proceedings by Authority or Person
Section 89A of additional maintenance agreement provisions deals with the institution of spousal maintenance proceedings by authority or person. The section allows the regulations to make provision for the following:
1. Authorising the following to institute and prosecute proceedings with respect to the maintenance of a party to a marriage, on behalf of that party:
- Prescribed authority of the Commonwealth, of a State or of a Territory; or
- The person for the time being holding a prescribed office under a law of the Commonwealth, of a State or of a Territory.
2. Prescribing the circumstances in which the authority or person may institute or prosecute proceedings.
3. Prescribing the procedures that must be followed by the authority or person when instituting or prosecuting proceedings.
Section 90: Certain Instruments Not Liable to Duty
Section 90 of additional maintenance agreement provisions refer to certain instruments that are not liable to duty. Here’s a breakdown of the key points:
- Exemptions from duty: This section outlines specific agreements, deeds, and instruments that are not subject to any duty or charge under applicable laws if they meet certain criteria. Types of exempt instruments:
- Deeds or instruments executed for the purposes of, or in accordance with, an order made under this Part are exempt from duty.
- Relevant maintenance agreements that confer a benefit upon a party to, or a child of, the marriage to which the maintenance agreement relates are exempt to the extent they provide such a benefit.
- Deeds or instruments executed for the purposes of, or in accordance with, a relevant maintenance agreement that confers a benefit upon a party to, or a child of, the marriage to which the maintenance agreement relates are exempt to the extent they provide such a benefit.
Additional Maintenance Agreements: Additional Provisions for Section 90
Section 90 of additional maintenance agreement provisions also clarifies which maintenance agreements are considered relevant for the purposes of these exemptions:
- Registered maintenance agreements made in connection with the termination of the marriage by divorce or annulment.
- Registered maintenance agreements (other than those in (a)) made in contemplation of the termination of the marriage by divorce or annulment.
- Registered maintenance agreements (other than those in (a) or (b)) made in connection with the breakdown of the marriage.
Note: Even if a maintenance agreement, deed, or other instrument deprives a person of an entitlement to certain property of equal or greater value, it may still be considered to confer a benefit upon that person.
Definitions:
- Approved maintenance agreement: A maintenance agreement approved by a court by order under section 87.
- Registered maintenance agreement: A maintenance agreement registered in a court under section 86 or pursuant to regulations made under section 89.
- Reference to the marriage to which a maintenance agreement relates: It refers to the marriage involving the parties who are also parties to the maintenance agreement.
Importance of Seeking Legal Advice
JB Solicitors is a family law firm that can help you with all aspects of family law, including separation, divorce, child custody, and property settlement. They have a team of experienced lawyers who can help you understand your rights and options, and they can represent you in court if necessary. Here are a few reasons why it is important to seek legal advice from our team:
- Family law is complex. The Family Law Act is a complex piece of legislation. A client may have difficulty understanding their rights and responsibilities in separation or divorce proceedings. A family lawyer can help you understand the law and your options, and they can represent you in court if necessary.
- A family lawyer can help you reach a fair and reasonable agreement. When couples separate or divorce, they often have disputes on the division of assets and the payment of maintenance. A family lawyer can help you reach a fair and reasonable agreement that meets the needs of both parties.
- A family lawyer can protect your rights. What if your ex-partner is not willing to cooperate, or if they are trying to take advantage of you? Surely you would want a family lawyer that can protect your rights and ensure that you are treated fairly. Our team believes that every client deserves legal representation to ensure a fair court proceeding or if mediation is needed.
Contact our team today if you need more help with additional maintenance agreement provisions.