Married Persons Property Act 1986 (ACT)
Married Persons Property Act 1986
A1986-18
Republication No 8 (RI)
Effective: 7 November 2013
Republication date: 7 November 2013
Reissued: 24 February 2014 because of High Court decision
in relation to A2013‑39
Last amendment made by A2013‑39 (never effective)
Unauthorised version prepared by ACT Parliamentary Counsel’s Office
About this republication
The republished law
This is a republication of the Married Persons Property Act 1986 (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 7 November 2013. It also includes any commencement, amendment, repeal or expiry affecting this republished law to 7 November 2013.
The legislation history and amendment history of the republished law are set out in endnotes 3 and 4.
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at type="disc">
authorised republications to which the Legislation Act 2001 applies
unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice.
This republication does not include amendments made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced, the symbol U appears immediately before the provision heading. Any uncommenced amendments that affect this republished law are accessible on the ACT legislation register ( For more information, see the home page for this law on the register.
Modifications
If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see the Legislation Act 2001, section 95.
Penalties
At the republication date, the value of a penalty unit for an offence against this law is $140 for an individual and $700 for a corporation (see Legislation Act 2001, s 133).
Married Persons Property Act 1986
Contents
Page
1 Name of Act 2
1A Dictionary 2
1B Notes 2
2 Meaning of court 2
3 Legal capacity of married women 2
4 Authority to pledge spouse’s credit 3
5 Agent of necessity 3
6 Restriction on anticipation or alienation 3
7 Debts incurred before marriage 3
8 Crimes in relation to spouse’s property 4
9 Transfer of property to spouse, civil union partner, civil partner or child 4
10 Purchase or transfer of property before marriage, civil union or civil partnership 5
11 Housekeeping allowances 6
12 Beneficiaries who are married, in civil union or civil partnership 7
13 Applications to decide property disputes 7
14 Jurisdiction of Magistrates Court 7
15 Powers of the court 8
Dictionary10
Endnotes
1 About the endnotes 11
2 Abbreviation key 11
3 Legislation history 12
4 Amendment history 14
5 Earlier republications 16
Married Persons Property Act 1986
An Act relating to the rights and liabilities of people who are married, in a civil union or civil partnership in relation to property
Name of Act
This Act is the Married Persons Property Act 1986.
1ADictionary
The dictionary at the end of this Act is part of this Act.
Note 1The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act.
For example, the signpost definition ‘court—see section 2.’ means that the term ‘court’ is defined in that section.
Note 2A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).
1BNotes
A note included in this Act is explanatory and is not part of this Act.
NoteSee the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.
Meaning of court
In this Act:
NoteA definition applies except so far as the contrary intention appears (see Legislation Act 2001, s 155).
court means the Supreme Court or the Magistrates Court.
Legal capacity of married women
(1)Except as otherwise provided by another Territory law, a married woman has, for all purposes, the same rights, privileges, powers, capacities, duties and liabilities as a married man, whether she is acting in a personal, official, representative or fiduciary capacity.
(2)Subsection (1) applies in relation to any married woman, whether she was married before or after the commencement of this Act, and whether or not her marriage took place in the ACT.
Authority to pledge spouse’s credit
(1)A husband living with his wife has the same presumed or implied authority to pledge his wife’s credit as a wife living with her husband has to pledge her husband’s credit.
(2)Subsection (1) applies to 2 people in a domestic partnership who are not married to each other in the same way as it applies to a husband and wife who are living together.
NoteFor the meaning of domestic partnership, see Legislation Act, s 169.
Agent of necessity
Any rule of law or equity giving a married woman authority, as agent of necessity of her husband, to pledge his credit or to borrow money on his credit ceases to have any force or effect in the ACT.
Restriction on anticipation or alienation
Any instrument executed after the commencement of this Act is void to the extent that it purports to attach any restriction on anticipation or alienation to the enjoyment by a woman of any property that could not have been attached to the enjoyment by a man of that property.
Debts incurred before marriage
A married person is not liable for any debt incurred by his or her spouse before their marriage.
Crimes in relation to spouse’s property
An act that would, if done by a married man in relation to any property of his wife, make him liable to criminal proceedings shall, if done by a married woman in relation to any property of her husband, make her liable to criminal proceedings.
Transfer of property to spouse, civil union partner, civil partner or child
(1)If property or an interest in property paid for by a woman with her money, or owned by a woman—
(a)is vested in or transferred to her husband, or her child or another person to whom she stands in place of a parent; or
(b)is vested jointly in or transferred jointly to herself and her husband, or herself and her child or herself and another person to whom she stands in place of a parent;
then, unless the contrary intention appears, the same presumptions of gift or advancement shall be taken to arise in relation to the property or the interest in property, as the case may be, as would arise if the property or interest had been paid for by a man with his money, or owned by a man, and had respectively—
(c)vested in or been transferred to his wife, or his child or another person to whom he stands in place of a parent; or
(d)vested jointly in, or been transferred jointly to, himself and his wife, or himself and his child or himself and another person to whom he stands in place of a parent.
(2)If—
(a)a person and the person’s spouse, civil union partner or civil partner both contribute to the purchase of property or an interest in property; and
(b)the property or interest is vested in or transferred to 1 spouse, civil union partner or civil partner (the transferee);
the transferee is taken (unless the contrary intention appears) to hold the property or interest in trust for the transferee and the transferee’s spouse, civil union partner or civil partner as joint tenants.
Purchase or transfer of property before marriage, civil union or civil partnership
(1)If property or an interest in property paid for by a person with his or her money or owned by the person (the transferor) is, in the transferor’s contemplation of his or her marriage to, or civil union or civil partnership with, another person (the transferee) vested in or transferred to the transferee then, unless the contrary intention appears—
(a)until the marriage, civil union or civil partnership takes place, the transferee shall be taken to hold the property, or the interest in property, as the case may be, in trust for the transferor; and
(b)on the marriage, civil union or civil partnership, the transferee shall be taken to hold the property or interest absolutely.
(2)If property or an interest in property paid for by a person with his or her money or owned by the person (the transferor) is, in the transferor’s contemplation of his or her marriage to, or civil union or civil partnership with, another person (the transferee), vested jointly in or transferred jointly to the transferor and the transferee then, unless the contrary intention appears—
(a)until the marriage, civil union or civil partnership takes place, the transferor and the transferee shall be taken to hold the property, or the interest in property, as the case may be, in trust for the transferor; and
(b)on the marriage, civil union or civil partnership, the transferor and the transferee shall be taken to hold the property or interest as joint tenants.
(3)If—
(a)2 persons, in contemplation of their marriage to, or civil union or civil partnership with, each other, both contribute to the purchase of property or an interest in property; and
(b)the property or the interest in property, as the case may be, is vested in or transferred to one of the persons (the transferee),
then, unless the contrary intention appears—
(c)until the marriage, civil union or civil partnership takes place, the property or the interest shall be taken to be held by the transferee in trust for himself or herself and the other person as tenants in common in shares proportionate to their respective contributions; and
(d)on the marriage, civil union or civil partnership, the property or the interest shall be taken to be held by the transferee in trust for himself or herself and the other person as joint tenants.
Housekeeping allowances
If a person who is married or in a civil union or civil partnership makes a payment or allowance to his or her spouse, civil union partner or civil partner to pay their joint household expenses or for similar purposes, any property bought with the payment or allowance and any money not spent from the payment or allowance shall, in the absence of any agreement to the contrary between the person and his or her spouse, civil union partner or civil partner, be taken to belong to the person and his or her spouse, civil union partner or civil partner as joint tenants.
Beneficiaries who are married, in civil union or civil partnership
For the purposes of the construction of a will, deed or other instrument in relation to a gift or other disposition of real or personal property to 2 or more persons as joint tenants or as tenants in common, any person and his or her spouse, civil union partner or civil partner included among those persons shall, unless the contrary intention is shown, be treated as 2 separate persons for the purpose of calculating the share of the property to which each of the persons is entitled.
Applications to decide property disputes
(1)This section applies if any question arises between a person and his or her spouse, civil union partner or civil partner in relation to the title to, or possession or disposition of, any property (including any question in relation to the investment by one of them of money of the other without the consent of the other).
(2)The person, or a third party on whom conflicting claims are being or are expected to be made by the person and his or her spouse, civil union partner or civil partner in relation to any property, may apply to the court to hear and decide the question.
Jurisdiction of Magistrates Court
The jurisdiction of the Magistrates Court to hear and decide a question mentioned in section 13 is—
(a)subject to the Magistrates Court Act 1930, section 264 (Proceedings affecting title to land); and
(b)limited to a case where the question relates to property having a value that is not more than the amount mentioned in the Magistrates Court Act 1930, section 257 (1) (Personal actions at law—amount or value).
Powers of the court
(1)In proceedings instituted by an application under section 13 in relation to property the court may, on the application of a party to the proceedings, grant an injunction restraining any person from making any threatened or apprehended transfer, assignment, sale or other disposition of the property until the application under section 13 is heard and decided.
(2)On the hearing of an application under section 13 in relation to property the court may make any orders in relation to the title to, or the possession or disposition of, the property it considers appropriate, and may, in particular, make orders for the sale of the property and the division of the proceeds of sale, or for the partition or division of the property.
(3)For the purpose of giving effect to any order made in relation to property under subsection (2), the court may set aside any transfer, assignment, sale or other disposition of the property that was made with a view to defeating an existing or apprehended order in relation to the property.
(4)When making an order in relation to property under subsection (2), the court shall have regard to the interests of, and shall make any order proper for the protection of, a person who purchased the property in good faith or any other interested person.
(5)If an application under section 13 relates to money of the spouse, civil union partner or civil partner of a person that was invested by the person without the consent of the spouse, civil union partner or civil partner, the court may order that the amount of the money and any interest, dividend or other profit derived from the money be paid to the spouse, civil union partner or civil partner.
(6)If a third party referred to in section 13 makes an application under that section, the third party shall, for the purposes of the proceedings in relation to the application, be treated as a stakeholder only.
(7)On the hearing of an application under section 13 or subsection (1), the court may direct any inquiry about the matters in question to be made in any way the court considers appropriate.
(8)Nothing in this Act shall be taken to affect any power of the court given by any other Territory law.
Dictionary
(see s 1A)
Note 1The Legislation Act contains definitions and other provisions relevant to this Act.
Note 2For example, the Legislation Act, dict, pt 1 defines the following terms:
· civil partner
· civil partnership
· civil union
· civil union partner
· Magistrates Court
· Supreme Court
· territory law.
court—see section 2.
Endnotes
About the endnotes
Amending and modifying laws are annotated in the legislation history and the amendment history. Current modifications are not included in the republished law but are set out in the endnotes.
Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel’s Office.
Uncommenced amending laws are not included in the republished law. The details of these laws are underlined in the legislation history. Uncommenced expiries are underlined in the legislation history and amendment history.
If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering.
The endnotes also include a table of earlier republications.
Abbreviation key
A = Act NI = Notifiable instrument AF = Approved form o = order am = amended om = omitted/repealed amdt = amendment ord = ordinance AR = Assembly resolution orig = original ch = chapter par = paragraph/subparagraph CN = Commencement notice pres = present def = definition prev = previous DI = Disallowable instrument (prev...) = previously dict = dictionary pt = part disallowed = disallowed by the Legislative r = rule/subrule Assembly reloc = relocated div = division renum = renumbered exp = expires/expired R[X] = Republication No Gaz = gazette RI = reissue hdg = heading s = section/subsection IA = Interpretation Act 1967 sch = schedule ins = inserted/added sdiv = subdivision LA = Legislation Act 2001 SL = Subordinate law LR = legislation register sub = substituted LRA = Legislation (Republication) Act 1996 underlining = whole or part not commenced mod = modified/modification or to be expired
Legislation history
This Act was originally a Commonwealth ordinance—the Married Persons’ Property Ordinance 1986 Ord1986-18 (Cwlth).
The Australian Capital Territory (Self-Government) Act 1988 (Cwlth), s 34 (4) converted most former Commonwealth ordinances in force in the ACT into ACT enactments. This allowed the ACT Legislative Assembly to amend and repeal the laws. This Act was converted into an ACT enactment on 11 May 1989 (self-government day).
As with most ordinances in force in the ACT, the name was changed from Ordinance to Act by the Self-Government (Citation of Laws) Act 1989 A1989‑21, s 5 on 11 May 1989 (self-government day).
The name of the Act was later changed to the Married Persons Property Act 1986 under the Legislation Act 2001.
Before 11 May 1989, ordinances commenced on their notification day unless otherwise stated (see Seat of Government (Administration) Act 1910 (Cwlth), s 12).
Legislation before becoming Territory enactment
Married Persons Property Act 1986 A1986‑18
notified 26 June 1986
commenced 26 June 1986
as amended by
Magistrates Court (Civil Jurisdiction) (Amendment) Ordinance 1988 Ord1988‑81 s 9
notified 14 December 1988
commenced 3 January 1989 (s 2)
Legislation after becoming Territory enactment
Statute Law Revision Act 1995 A1995‑46 sch
notified 18 December 1995 (Gaz 1995 No S306)
amdts commenced 18 December 1995 (s 2)
Sexuality Discrimination Legislation Amendment Act 2004 A2004-2 sch 1 pt 1.10
notified LR 18 February 2004
s 1, s 2 commenced 18 February 2004 (LA s 75 (1))
sch 1 pt 1.10 commenced 22 March 2004 (s 2 and CN2004-4)Court Procedures (Consequential Amendments) Act 2004 A2004-60 sch 1 pt 1.53
notified LR 2 September 2004
s 1, s 2 commenced 2 September 2004 (LA s 75 (1))sch 1 pt 1.53 commenced 10 January 2005 (s 2 and see Court Procedures Act 2004 A2004-59, s 2 and CN2004-29)
Civil Unions Act 2006 A2006-22 sch 1 pt 1.22
notified LR 19 May 2006
s 1, s 2 commenced 19 May 2006 (LA s 75 (1))
sch 1 pt 1.22 never commencedNoteAct repealed by disallowance 14 June 2006 (see Cwlth Gaz 2006 No S93)
Statute Law Amendment Act 2007 A2007-3 sch 3 pt 3.67
notified LR 22 March 2007
s 1, s 2 taken to have commenced 1 July 2006 (LA s 75 (2))sch 3 pt 3.67 commenced 12 April 2007 (s 2 (1))
Civil Partnerships Act 2008 A2008-14 sch 1 pt 1.18
notified LR 15 May 2008
s 1, s 2 commenced 15 May 2008 (LA s 75 (1))
sch 1 pt 1.18 commenced 19 May 2008 (s 2 and CN2008-8)Civil Unions Act 2012 A2012-40 sch 3 pt 3.20
notified LR 4 September 2012
s 1, s 2 commenced 4 September 2012 (LA s 75 (1))sch 3 pt 3.20 commenced 11 September 2012 (s 2)
Marriage Equality (Same Sex) Act 2013 A2013-39 sch 2 pt 2.18
notified LR 4 November 2013
s 1, s 2 commenced 4 November (LA s 75 (1))sch 2 pt 2.18 commenced 7 November 2013 (s 2 and CN2013-11)
NoteThe High Court held this Act to be of no effect (see Commonwealth v Australian Capital Territory [2013] HCA 55)
Amendment history
Long title
long titleam A2006‑22 amdt 1.75 (A2006‑22 rep before commenced by disallowance (see Cwlth Gaz 2006 No S93)); A2008‑14 amdt 1.45; A2012‑40 amdt 3.67
Name of Act
s 1 hdgam R2 LA
s 1am R2 LA
Dictionary
s 1Ains A2007‑3 amdt 3.369
Notes
s 1Bins A2007‑3 amdt 3.369
Authority to pledge spouse’s credit
s 4am A2004‑2 amdt 1.32, A2013‑39 amdt 2.39 (A2013‑39 never effective (see Commonwealth v Australian Capital Territory [2013] HCA 55))
Debts incurred before marriage
s 7am A2013‑39 amdt 2.40 (A2013‑39 never effective (see Commonwealth v Australian Capital Territory [2013] HCA 55))
Transfer of property to spouse, civil union partner, civil partner or child
s 9 hdgsub A2006‑22 amdt 1.76 (A2006‑22 rep before commenced by disallowance (see Cwlth Gaz 2006 No S93)); A2008‑14 amdt 1.46; A2012‑40 amdt 3.68
s 9am A2006‑22 amdt 1.77, amdt 1.78 (A2006‑22 rep before commenced by disallowance (see Cwlth Gaz 2006 No S93)); A2008‑14 amdt 1.47; A2012‑40 amdt 3.69
Purchase or transfer of property before marriage or civil partnership
s 10 hdgsub A2006‑22 amdt 1.79 (A2006‑22 rep before commenced by disallowance (see Cwlth Gaz 2006 No S93)); A2008‑14 amdt 1.48; A2012‑40 amdt 3.70, A2013‑39 amdt 2.41 (A2013‑39 never effective (see Commonwealth v Australian Capital Territory [2013] HCA 55))
s 10am A2006‑22 amdts 1.80-1.88 (A2006‑22 rep before commenced by disallowance (see Cwlth Gaz 2006 No S93)); A2008‑14 amdts 1.49-1.57; A2012‑40 amdts 3.71‑3.76, A2013‑39 amdts 2.42-2.47 (A2013‑39 never effective (see Commonwealth v Australian Capital Territory [2013] HCA 55))
Housekeeping allowances
s 11am A2006‑22 amdt 1.89, amdt 1.90 (A2006‑22 rep before commenced by disallowance (see Cwlth Gaz 2006 No S93)); A2008‑14 amdt 1.58, amdt 1.59; A2012‑40 amdt 3.77, amdt 3.78, A2013‑39 amdt 2.48 (A2013‑39 never effective (see Commonwealth v Australian Capital Territory [2013] HCA 55))
Beneficiaries who are married, in civil union or civil partnership
s 12 hdgsub A2006‑22 amdt 1.91 (A2006‑22 rep before commenced by disallowance (see Cwlth Gaz 2006 No S93)); A2008‑14 amdt 1.60; A2012‑40 amdt 3.79
s 12am A2006‑22 amdt 1.92 (A2006‑22 rep before commenced by disallowance (see Cwlth Gaz 2006 No S93)); A2008‑14 amdt 1.61; A2012‑40 amdt 3.80, A2013‑39 amdt 2.48 (A2013‑39 never effective (see Commonwealth v Australian Capital Territory [2013] HCA 55))
Applications to decide property disputes
s 13am A2004‑60 amdt 1.589
sub A2006‑22 amdt 1.93 (A2006‑22 rep before commenced by disallowance (see Cwlth Gaz 2006 No S93)); A2008‑14 amdt 1.62
am A2012‑40 amdt 3.81, A2013‑39 amdt 2.48 (A2013‑39 never effective (see Commonwealth v Australian Capital Territory [2013] HCA 55))
Jurisdiction of Magistrates Court
s 14 hdgsub A2004‑60 amdt 1.590
s 14am Ord1988‑81 s 9; A1995‑46 sch
sub A2004‑60 amdt 1.590
Powers of the Court
s 15am A2004‑60 amdt 1.591; A2006‑22 amdt 1.94 (A2006‑22 rep before commenced by disallowance (see Cwlth Gaz 2006 No S93)); A2008‑14 amdt 1.63; A2012‑40 amdt 3.82
Dictionary
dictins A2007‑3 amdt 3.370
am A2008‑14 amdt 1.64; A2012‑40 amdt 3.83, A2013‑39 amdt 2.49 (A2013‑39 never effective (see Commonwealth v Australian Capital Territory [2013] HCA 55))
def court ins A2007‑3 amdt 3.370
Earlier republications
Some earlier republications were not numbered. The number in column 1 refers to the publication order.
Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register. A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1. Electronic and printed versions of an authorised republication are identical.
Republication No Amendments to Republication date 1 Ord1988‑81 31 July 1991 2 A1995‑46 17 July 2002 3 A2004‑2 22 March 2004 4 A2004‑60 10 January 2005 5 A2007‑3 12 April 2007 6 A2008‑14 19 May 2008 7 A2012‑40 11 September 2012 8 A2013‑39 (never effective) 7 November 2013
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