Commonwealth Consolidated Acts Commonwealth Consolidated ActsPart 1 -- Application and transitional provisions relating to family law matters
1 Definitions
(1) In this Schedule:
pre - commencement same - sex marriage means a marriage (within the meaning of the Marriage Act 1961 , as amended by this Act) that:
(a) was solemnised before the recognition time; and
(b) is recognised in Australia as valid at the recognition time because of Part 5 of Schedule 1 to this Act; and
(c) would not have been so recognised apart from that Part.
recognition time means the commencement of Part 5 of Schedule 1.
(2) A term that is used in this Schedule and defined for the purposes of the Family Law Act 1975 has the same meaning in this Schedule as it has in that Act.
Division 2--Matters under the Family Law Act 1975
2 Proceedings pending under the Family Law Act 1975 in relation to pre - commencement same - sex marriages
(1) This item applies to proceedings that:
(a) were pending under the Family Law Act 1975 immediately before the recognition time; and
(b) related to a de facto relationship that:
(i) existed before or when the proceedings were instituted; and
(ii) was between 2 persons who were parties to a single pre - commencement same - sex marriage solemnised before the proceedings were instituted.
(2) The proceedings continue under the Family Law Act 1975 at and after the recognition time:
(a) as if they related to a marriage that had been solemnised when the pre - commencement same - sex marriage was solemnised; and
(b) if the proceedings were a de facto financial cause--as if anything done before the recognition time for the purposes of a provision of Part VIIIAB of that Act (except Division 4 of that Part) had been done for the purposes of the corresponding provision of Part VIII of that Act.
Note 1: Part VIII of that Act is about property, spousal maintenance and maintenance agreements relating to a marriage. Part VIIIAB of that Act is about financial matters relating to de facto relationships. Division 4 of that Part i s about financial agreements.
Note 2: Item 5 of this Schedule deals with financial agreements.
3 Cessation of maintenance at recognition time
(1) If:
(a) before the recognition time, an order was made under Part VIII of the Family Law Act 1975 with respect to the maintenance of a party to a marriage; and
(b) the party later became party to a pre - commencement same - sex marriage;
subsections 82(4), (6), (7) and (8) of that Act apply in relation to the order as if the party had remarried at the recognition time.
(2) If:
(a) before the recognition time, an order was made under Division 2 of Part VIIIAB of the Family Law Act 1975 with respect to the maintenance of a party (the receiving party ) to a de facto relationship; and
(b) the receiving party later became party to a pre - commencement same - sex marriage with someone who was not a party to the de facto relationship;
subsections 90SJ(2), (3), (4) and (5) of that Act apply in relation to the order as if the receiving party had married at the recognition time.
4 Recognition of overseas divorces, annulments and legal separations relating to pre - commencement same - sex marriages
(1) To avoid doubt, subsection 104(3) of the Family Law Act 1975 extends to a divorce, annulment or legal separation relating to a pre - commencement same - sex marriage, even if:
(a) the relevant date (as defined in section 104 of that Act) was before the recognition time; or
(b) the divorce, annulment or legal separation occurred before the recognition time.
(2) The Family Law Act 1975 applies as if subsection 104(3) of that Act also provided for a divorce effected in accordance with the law of an overseas jurisdiction to be recognised as valid in Australia if the divorce related to a pre - commencement same - sex marriage and was effected before the recognition time.
(3) For the purposes of the application of subsection 104(4) of the Family Law Act 1975 in relation to subsection 104(3) of that Act as it applies because of subitem ( 2), the mere fact that the divorce relates to a pre - commencement same - sex marriage does not mean that recognition of the divorce would manifestly be contrary to public policy.
5 Financial agreements and separation declarations
(1) This item applies if:
(a) before the recognition time, the parties to a pre - commencement same - sex marriage made a Part VIIIAB financial agreement relating to a contemplated, actual or former de facto relationship between them:
(i) whether or not they were parties to the pre - commencement same - sex marriage at the time they made the agreement; and
(ii) whether or not anyone else is a party to the agreement; and
(b) under section 90UJ of the Family Law Act 1975 , the agreement is binding on the parties to the agreement immediately before the recognition time.
(2) For the purposes of a law of the Commonwealth (including the Family Law Act 1975 ) at and after the recognition time, the agreement, with the necessary changes, is taken:
(a) to be a financial agreement made under Part VIIIA of that Act relating to a contemplated, actual or former marriage between the parties to the pre - commencement same - sex marriage; and
(b) to be binding on the parties to the agreement under section 90G of that Act until the agreement is terminated or set aside in accordance with that Act.
(3) However, the agreement is taken not to include a provision that deals with a matter that could not validly have been dealt with in a Part VIIIAB financial agreement, even if the matter could validly be dealt with in a financial agreement.
(4) Section 90E of the Family Law Act 1975 does not apply in relation to the agreement at and after the recognition time if the agreement was covered by section 90UE (agreements made in non - referring States that become Part VIIIAB financial agreements) of that Act before that time.
Note: Section 90E and subsection 90UH(1) of that Act set out requirements for provisions in agreements relating to the maintenance of a party or a child or children. Subsection 90UH(1) does not apply in relation to a Part VIIIAB financial agreement covered by section 90UE.
(5) If, before the recognition time, a separation declaration was made, as described in section 90UF of the Family Law Act 1975 , for the purposes of giving effect to the agreement (whether the declaration was included in the agreement or not), the declaration is taken on and after that time to be a separation declaration made as described in section 90DA of that Act.
(6) If, before the recognition time, a separation declaration was made as described in subsection 90MP(8), (9) or (10) of the Family Law Act 1975 in relation to the agreement so far as it is a superannuation agreement for the purposes of Part VIIIB of that Act, the declaration is taken on and after that time to be a separation declaration made as described in subsection 90MP(3), (4) or (4A) of that Act.
(7) Subitem ( 6) applies whether the separation declaration was included in the superannuation agreement or not.
Division 3 --Matters under the Family Court Act 1997 (WA)
6 Proceedings pending under the Family Court Act 1997 (WA) before the recognition time
Application
(1) This item applies to proceedings in a court (the WA court ) that:
(a) were pending under the Family Court Act 1997 (WA) (the WA Act ) immediately before the recognition time; and
(b) related to a de facto relationship that:
(i) existed before or when the proceedings were instituted; and
(ii) was between 2 persons who were parties to a single pre - commencement same - sex marriage solemnised before the proceedings were instituted.
Continuation of proceedings under the Family Law Act 1975
(2) The proceedings continue under the Family Law Act 1975 (the Commonwealth Act ) at and after the recognition time:
(a) as if they related to a marriage that had been solemnised when the pre - commencement same - sex marriage was solemnised; and
(b) if the proceedings were Part 5A proceedings (within the meaning of the WA Act)--as if anything done before the recognition time for the purposes of a provision of Part 5A of the WA Act (except Division 3 of that Part) had been done for the purposes of the corresponding provision of Part VIII of the Commonwealth Act.
Note 1: Part VIII of the Commonwealth Act is about property, spousal maintenance and maintenance agreements relating to a marriage. Part 5A of the WA Act is about financial matters relating to de facto relationships. Division 3 of that Part i s about financial agreements.
Note 2: Item 8 of this Schedule deals with financial agreements made under Division 3 of Part 5A of the WA Act.
(3) The WA court is invested with jurisdiction to hear and determine the proceedings as continued under subitem ( 2).
(4) Any decision validly made by a court before the recognition time about the admissibility of particular evidence in the proceedings continues to have effect for the purposes of the proceedings after that time.
(5) In performing duties or exercising powers in relation to the proceedings under the Commonwealth Act, a court may ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.
Appeal proceedings in Court of Appeal
(6) If the proceedings were an appeal instituted in, or made to, the Court of Appeal under Part 7 of the WA Act, that Court may, on the application of a party or of its own motion, refer the appeal to a Full Court of the Family Court of Australia.
(6A) To avoid doubt, on and after the day Schedule 1 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 commences, an appeal mentioned in subitem (6) may not be referred to the Full Court of the Federal Circuit and Family Court of Australia (Division 1).
(7) If an appeal is referred to a Full Court of the Family Court of Australia under subitem ( 6):
(a) jurisdiction is conferred on the Court to hear and determine the appeal; and
(b) the following provisions of the Commonwealth Act, and the standard Rules of Court made for the purposes of those provisions, apply in relation to the appeal as if it were an appeal referred to in subsection 94(1) of that Act:
(i) subsection 93A(2);
(ii) section 94, except subsections 94(1), (1AA), (1A) and (3);
(iii) section 94AAB;
(iv) section 96AA; and
(c) the Full Court may proceed by way of a hearing de novo , but may receive as evidence any record of evidence given, including any affidavit filed or exhibit received in the Court of Appeal or the court from which the appeal lay.
(8) However, subsection 94(2) of the Commonwealth Act applying because of subitem ( 7) does not permit the Full Court to order a re - hearing by the Court of Appeal.
This item does not apply to proceedings about guardians
(9) Despite subitem ( 1), this item does not apply to so much of the proceedings as relate to the appointment or removal under section 71 of the WA Act of a guardian.
7 Cessation of maintenance at recognition time
If:
(a) before the recognition time, an order was made under Division 2 of Part 5A of the Family Court Act 1997 (WA) with respect to the maintenance of a party (the receiving party ) to a de facto relationship; and
(b) the receiving party later became party to a pre - commencement same - sex marriage with someone who was not a party to the de facto relationship;
section 82 of the Family Law Act 1975 applies in relation to the order as if it were an order with respect to the maintenance of a party to a marriage and the party had remarried at the recognition time.
8 Financial agreements and separation declarations
(1) This item applies if:
(a) before the recognition time, the parties to a pre - commencement same - sex marriage made a financial agreement within the meaning of Part 5A of the Family Court Act 1997 (WA), or a former financial agreement (within the meaning of that Part), relating to a contemplated, actual or former de facto relationship between them:
(i) whether or not they were parties to the pre - commencement same - sex marriage at the time they made the agreement; and
(ii) whether or not anyone else is a party to the agreement; and
(b) under section 205ZS of that Act, the agreement is binding on the parties to the agreement immediately before the recognition time.
(2) For the purposes of a law of the Commonwealth (including the Family Law Act 1975 ) at and after the recognition time, the agreement, with the necessary changes, is taken:
(a) to be a financial agreement made under Part VIIIA of that Act relating to a contemplated, actual or former marriage between the parties to the pre - commencement same - sex marriage; and
(b) to be binding on the parties to the agreement under section 90G of that Act until the agreement is terminated or set aside in accordance with that Act.
(3) However, the agreement is taken not to include a provision that deals with a matter that could not validly have been dealt with in a financial agreement within the meaning of Part 5A of the Family Court Act 1997 (WA), even if the matter could validly be dealt with in a financial agreement within the meaning of the Family Law Act 1975 .
(4) If the agreement was a former financial agreement (within the meaning of Part 5A of the Family Court Act 1997 (WA)), then section 90E of the Family Law Act 1975 (requirements for provisions in agreements relating to the maintenance of a party or a child or children) does not apply in relation to the agreement.
(5) Section 90DA (need for separation declaration) of the Family Law Act 1975 does not apply in relation to the agreement unless the spouse parties separate, and begin living separately and apart, at or after the recognition time.
Part 2 -- Other transitional provisions
9 Second marriage ceremonies for certain marriages by foreign diplomatic or consular officers that occurred in Australia before commencement
(1) This item applies to a marriage (within the meaning of the Marriage Act 1961 , as amended by this Act) that was solemnised:
(a) in Australia, before the commencement of this item; and
(b) by or in the presence of a diplomatic or consular officer of a foreign country (whether or not the country was a proclaimed overseas country at the time the marriage was solemnised).
(2) Subsections 113(2) and (5) of the Marriage Act 1961 , as in force on and after the commencement of this item, apply in relation to the marriage as if it took place outside Australia.
10 Transitional rules
(1) The Attorney - General may, by legislative instrument, make rules ( transitional rules ) prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Act.
(2) To a v oid doubt, the transitional rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e) directly amend the text of an Act.
(3) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to transitional rules made during the period of 12 months starting on the commencement of this item.