Summary of recommendations

Chapter 19 – Relationship property and trusts

R50Section 44C(2)(c) of the Property (Relationships) Act 1976 should be amended to provide that the court may make an order requiring the trustees of the trust to pay to one spouse or partner a specified sum of money from the trust property or to transfer to one spouse or partner any property of the trust. A consequential amendment would need to be made to the wording in section 44C(3)(b)(i) to replace the reference in that subsection to “distribute the income of the trust” with something like “distribute a sum of money or property of the trust”. Section 44C should otherwise remain unchanged.

R51Section 182 of the Family Proceedings Act 1980, under which the courts may vary the terms of ante- and post-nuptial settlements, including trusts, when a marriage or civil union is dissolved, should be amended to also cover de facto relationships. The following changes should be made to the jurisdictional requirements of section 182:
(a)the terms “de facto partner” and “de facto relationship” should have the same meaning as these terms have in sections 2C and 2D of the Property (Relationships) Act 1976;
(b)the triggering event that allows an application to be made to the court, or the court to make an order varying any qualifying settlement, should be changed from when a marriage or civil union is dissolved to when the parties to a relationship separate; and
(c)an application to the court should be able to be made in respect of relationship settlements rather than nuptial settlements. The term “relationship settlement” may need to be defined.