79Alteration of property interests

#### 79 Alteration of property interests Orders in property settlement proceedings (1) In property settlement proceedings, the court may, subject to subsection (6), make such order as it considers appropriate: (a) in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; or (b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage—altering the interests of the bankruptcy trustee in the vested bankruptcy property; including: (c) an order for a settlement of property in substitution for any interest in the property; and (d) an order requiring: (i) either or both of the parties to the marriage; or (ii) the relevant bankruptcy trustee (if any); to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines. > Note: Subsection (6) relates to property that is a companion animal. (2) The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. (3) In considering what order (if any) should be made under this section in property settlement proceedings, the court: (a) is to identify: (i) the existing legal and equitable rights and interests in any property of the parties to the marriage or either of them; and (ii) the existing liabilities of the parties to the marriage or either of them; and (b) is to take into account (except for the purpose of making an order with respect to the ownership of property that is a companion animal): (i) the considerations set out in subsection (4) (considerations relating to contributions); and (ii) the considerations set out in subsection (5) (considerations relating to current and future circumstances). > Note: See subsections (6) and (7) in relation to orders with respect to property that is a companion animal. Considerations relating to contributions (4) For the purposes of subparagraph (3)(b)(i), the court is to take into account the following considerations, so far as they are relevant: (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; (ca) the effect of any family violence, to which one party to the marriage has subjected or exposed the other party, on the ability of a party to the marriage to make the kind of contributions referred to in paragraphs (a), (b) and (c); (d) the effect of any proposed order upon the earning capacity of either party to the marriage; (f) any other order made under this Act affecting a party to the marriage or a child of the marriage; (g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided for a child of the marriage. Considerations relating to current and future circumstances (5) For the purposes of subparagraph (3)(b)(ii), the court is to take into account the following considerations, so far as they are relevant: (a) the effect of any family violence, to which one party to the marriage has subjected or exposed the other party, on the current and future circumstances of the other party, including on any of the matters mentioned elsewhere in this subsection; (b) the age and state of health of each of the parties to the marriage; (c) the income, property and financial resources of each of the parties to the marriage and the physical and mental capacity of each of them for appropriate gainful employment; (d) the effect of any material wastage, caused intentionally or recklessly by a party to the marriage, of property or financial resources of either of the parties to the marriage or both of them; (e) any liabilities incurred by either of the parties to the marriage or both of them, including the nature of the liabilities and the circumstances relating to them; (f) the extent to which either party to the marriage has the care of a child of the marriage who has not attained the age of 18 years, including the need of either party to provide appropriate housing for such a child; (g) commitments of each of the parties to the marriage that are necessary to enable the party to support themselves and any child or other person that the party has a duty to maintain; (h) the responsibilities of either party to the marriage to support any other person; (i) the eligibility of either party to the marriage for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; (j) if either party to the marriage is eligible for a pension, allowance or benefit as mentioned in paragraph (i)—the rate at which it is being paid to the party; (k) if the parties to the marriage have separated or divorced, a standard of living that in all the circumstances is reasonable; (l) the extent to which an alteration of the interests of the parties to the marriage in any property would enable a party to undertake education or establish a business or otherwise obtain an adequate income; (m) the effect of any proposed order on the ability of a creditor of a party to the marriage to recover the creditor’s debt, so far as that effect is relevant; (n) the extent to which each party to the marriage has contributed to the income, earning capacity, property and financial resources of the other party; (o) the duration of the marriage and the extent to which it has affected the earning capacity of each party to the marriage; (p) the need to protect a party to the marriage who wishes to continue that party’s role as a parent; (q) if either party to the marriage is cohabiting with another person—the financial circumstances relating to the cohabitation; (r) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to: (i) a party to the marriage; or (ii) a person who is a party to a de facto relationship with a party to the marriage; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); (s) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide, or might be liable to provide in the future, for a child of the marriage; (t) the terms of any financial agreement that is binding on the parties to the marriage; (u) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage; (v) any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account. Considerations relating to companion animals (6) In property settlement proceedings, so far as they are with respect to property that is a companion animal, the court may make an order (including a consent order or an interim order): (a) that only one party to the marriage, or only one person who has been joined as a party to the proceedings, is to have ownership of the companion animal; or (ab) that the companion animal be transferred to another person who has consented to the transfer; or (b) that the companion animal be sold. The court may not make any other kind of order under this section with respect to the ownership of the companion animal. > Note: For companion animal, see subsection 4(1). (7) In considering what order (if any) should be made under this section with respect to the ownership of property that is a companion animal, the court is to take into account the following considerations, so far as they are relevant: (a) the circumstances in which the companion animal was acquired; (b) who has ownership or possession of the companion animal; (c) the extent to which each party cared for, and paid for the maintenance of, the companion animal; (d) any family violence to which one party has subjected or exposed the other party; (e) any history of actual or threatened cruelty or abuse by a party towards the companion animal; (f) any attachment by a party, or a child of the marriage, to the companion animal; (g) the demonstrated ability of each party to care for and maintain the companion animal in the future, without support or involvement from the other party; (h) any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account. #### 79AA Other matters in relation to alteration of property interests (1) The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Enforcement of order after death of party (1A) An order made under section 79 in property settlement proceedings may, after the death of a party to the marriage, be enforced on behalf of, or against, as the case may be, the estate of the deceased party. Adjournment of property settlement proceedings (2) The court may (subject to subsection (2A)) adjourn property settlement proceedings on the terms and conditions the court considers appropriate, for the period the court considers necessary to enable the parties to the marriage to consider the likely effects (if any) of an order under section 79 on the marriage or the children of the marriage. (2A) Subsection (2) does not apply if the parties to the marriage are: (a) parties to concurrent, pending or completed divorce or validity of marriage proceedings; or (b) parties to a marriage who have divorced under the law of an overseas country, if that divorce is recognised as valid in Australia under section 104; or (c) parties to a marriage that has been annulled under the law of an overseas country, if that annulment is recognised as valid in Australia under section 104; or (d) parties to a marriage who have been granted a legal separation under the law of an overseas country, if that legal separation is recognised as valid in Australia under section 104. (3) Nothing in subsection (2) limits any other power of the court to adjourn property settlement proceedings. (4) A party to property settlement proceedings that have been adjourned under subsection (2) may apply to the court for the hearing of the proceedings to be continued if: (a) the period of the adjournment has not expired; and (b) any of the following subparagraphs apply: (i) one or both of the parties to the marriage institutes divorce or validity of marriage proceedings; (ii) the parties to the marriage have divorced under the law of an overseas country and the divorce is recognised as valid in Australia under section 104; (iii) the marriage is annulled under the law of an overseas country and the annulment is recognised as valid in Australia under section 104; (iv) the parties to the marriage are granted a legal separation under the law of an overseas country and the legal separation is recognised as valid in Australia under section 104. Likely significant change in financial circumstances (5) Without limiting the power of any court to grant an adjournment in proceedings under this Act, where, in property settlement proceedings, a court is of the opinion: (a) that there is likely to be a significant change in the financial circumstances of the parties to the marriage or either of them and that, having regard to the time when that change is likely to take place, it is reasonable to adjourn the proceedings; and (b) that an order that the court could make with respect to: (i) the property of the parties to the marriage or either of them; or (ii) the vested bankruptcy property in relation to a bankrupt party to the marriage; if that significant change in financial circumstances occurs is more likely to do justice as between the parties to the marriage than an order that the court could make immediately with respect to: (iii) the property of the parties to the marriage or either of them; or (iv) the vested bankruptcy property in relation to a bankrupt party to the marriage; the court may, if so requested by either party to the marriage or the relevant bankruptcy trustee (if any), adjourn the proceedings until such time, before the expiration of a period specified by the court, as that party to the marriage or the relevant bankruptcy trustee, as the case may be, applies for the proceedings to be determined, but nothing in this subsection requires the court to adjourn any proceedings in any particular circumstances. (6) Where a court proposes to adjourn proceedings as provided by subsection (5), the court may, before so adjourning the proceedings, make such interim order or orders or such other order or orders (if any) as it considers appropriate with respect to: (a) any of the property of the parties to the marriage or of either of them; or (b) any of the vested bankruptcy property in relation to a bankrupt party to the marriage. (7) The court may, in forming an opinion for the purposes of subsection (5) as to whether there is likely to be a significant change in the financial circumstances of either or both of the parties to the marriage, have regard to any change in the financial circumstances of a party to the marriage that may occur by reason that the party to the marriage: (a) is a contributor to a superannuation fund or scheme, or participates in any scheme or arrangement that is in the nature of a superannuation scheme; or (b) may become entitled to property as the result of the exercise in his or her favour, by the trustee of a discretionary trust, of a power to distribute trust property; but nothing in this subsection shall be taken to limit the circumstances in which the court may form the opinion that there is likely to be a significant change in the financial circumstances of a party to the marriage. Death of party before property settlement proceedings complete (8) Where, before property settlement proceedings are completed, a party to the marriage dies: (a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings; (b) if the court is of the opinion: (i) that it would have made an order with respect to property if the deceased party had not died; and (ii) that it is still appropriate to make an order with respect to property; the court may make such order as it considers appropriate with respect to: (iii) any of the property of the parties to the marriage or either of them; or (iv) any of the vested bankruptcy property in relation to a bankrupt party to the marriage; and (c) an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party. Attendance of parties at conference etc. before orders made (9) The Federal Circuit and Family Court of Australia (Division 1), or a Family Court of a State, shall not make an order under section 79 in property settlement proceedings (other than an order until further order or an order made with the consent of all the parties to the proceedings) unless: (a) the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate: (i) in the case of the Federal Circuit and Family Court of Australia (Division 1)—with the Chief Executive Officer, or a Senior Registrar or Registrar of the Court; or (ii) in the case of the Family Court of that State—with a Senior Registrar or Registrar of that Family Court; or (b) the court is satisfied that, having regard to the need to make an order urgently, or to any other special circumstance, it is appropriate to make the order notwithstanding that the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or (c) the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a). Creditors etc. entitled to become party to proceedings (10) The following are entitled to become a party to proceedings in which an application is made for an order under section 79 by a party to a marriage (the subject marriage): (a) a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the order were made; (aa) a person: (i) who is a party to a de facto relationship with a party to the subject marriage; and (ii) who could apply, or has an application pending, for an order under section 90SM, or a declaration under section 90SL, in relation to the de facto relationship; (ab) a person who is a party to a Part VIIIAB financial agreement (that is binding on the person) with a party to the subject marriage; (b) any other person whose interests would be affected by the making of the order. (10A) Subsection (10) does not apply to a creditor of a party to the proceedings: (a) if the party is a bankrupt—to the extent to which the debt is a provable debt (within the meaning of the Bankruptcy Act 1966); or (b) if the party is a debtor subject to a personal insolvency agreement—to the extent to which the debt is covered by the personal insolvency agreement. (10B) If a person becomes a party to proceedings under section 79 because of paragraph (10)(aa), the person may, in the proceedings, apply for: (a) an order under section 90SM; or (b) a declaration under section 90SL; in relation to the de facto relationship described in that paragraph. Bankruptcy trustee to become party to proceedings on application (11) If: (a) an application is made for an order under section 79 in proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them; and (b) either of the following subparagraphs apply to a party to the marriage: (i) when the application was made, the party was a bankrupt; (ii) after the application was made but before it is finally determined, the party became a bankrupt; and (c) the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and (d) the court is satisfied that the interests of the bankrupt’s creditors may be affected by the making of an order under section 79 in the proceedings; the court must join the bankruptcy trustee as a party to the proceedings. (12) If a bankruptcy trustee is a party to property settlement proceedings, then, except with the leave of the court, the bankrupt party to the marriage is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party. (13) The court must not grant leave under subsection (12) unless the court is satisfied that there are exceptional circumstances. Trustee of insolvency agreement to become party to proceedings on application (14) If: (a) an application is made for an order under section 79 in proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them; and (b) either of the following subparagraphs apply to a party to the marriage (the debtor party): (i) when the application was made, the party was a debtor subject to a personal insolvency agreement; or (ii) after the application was made but before it is finally determined, the party becomes a debtor subject to a personal insolvency agreement; and (c) the trustee of the agreement applies to the court to be joined as a party to the proceedings; and (d) the court is satisfied that the interests of the debtor party’s creditors may be affected by the making of an order under section 79 in the proceedings; the court must join the trustee of the agreement as a party to the proceedings. (15) If the trustee of a personal insolvency agreement is a party to property settlement proceedings, then, except with the leave of the court, the party to the marriage who is the debtor subject to the agreement is not entitled to make a submission to the court in connection with any property subject to the agreement. (16) The court must not grant leave under subsection (15) unless the court is satisfied that there are exceptional circumstances. When application is taken to be finally determined for purposes of subsections (11) and (14) (17) For the purposes of subsections (11) and (14), an application for an order under section 79 is taken to be finally determined when: (a) the application is withdrawn or dismissed; or (b) an order (other than an interim order) is made as a result of the application.