Section 44C — Property (Relationships) Act 1976: Compensation for property disposed of to trust

44C Compensation for property disposed of to trust (1) This section applies if the Court is satisfied— (a) that, since the marriage, the civil union, or the de facto relationship began, either or both spouses or partners have disposed of relationship property to a trust; and (b) that the disposition has the effect of defeating the claim or rights of 1 of the spouses or partners; and (c) that the disposition is not one to which section 44 applies. (2) If this section applies, the Court may make 1 or more of the following orders for the purpose of compensating the spouse or partner whose claim or rights under this Act have been defeated by the disposition: (a) an order requiring 1 spouse or partner to pay to the other spouse or partner a sum of money, whether out of relationship property or separate property: (b) an order requiring 1 spouse or partner to transfer to the other spouse or partner any property, whether the property is relationship property or separate property: (c) an order requiring the trustees of the trust to pay to 1 spouse or partner the whole or part of the income of the trust, either for a specified period or until a specified amount has been paid. (3) The Court must not make an order under subsection (2)(c) if— (a) an order under subsection (2)(a) or (b) would compensate the spouse or partner; or (b) a third person has in good faith altered that person's position— (i) in reliance on the ability of the trustees to distribute the income of the trust in terms of the instrument creating the trust; and (ii) in such a way that it would be unjust to make the order. (4) The Court may make 1 or more orders under subsection (2) if it considers it just to do so, having regard to— (a) the value of the relationship property disposed of to the trust: (b) the value of the relationship property available for division: (c) the date or dates on which relationship property was disposed of to the trust: (d) whether the trust gave consideration for the property, and if so, the amount of the consideration: (e) whether the spouses or partners, or either of them, or any child of the marriage, civil union, or de facto relationship, is or has been a beneficiary of the trust: (f) any other relevant matter. Sections 44A to 44F were inserted, as from 1 February 2002, by section 51 Property (Relationships) Amendment Act 2001 (2001 No 5). See Part 9 of this Act as to the transitional and saving provisions. Subsection (1) was amended, as from 26 April 2005, by section 3(1) Property (Relationships) Amendment Act 2005 (2005 No 19) by substituting the word “ partners ” for the words “ de facto partners ” in both places they appear. Subsection (1) was amended, as from 26 April 2005, by section 3(4) Property (Relationships) Amendment Act 2005 (2005 No 19) by inserting the words “ , the civil union, ” after the word “ marriage ” . Subsections (2) and (3)(a) were amended, as from 26 April 2005, by section 3(2) Property (Relationships) Amendment Act 2005 (2005 No 19) by substituting the word “ partner ” for the words “ de facto partner ” . Subsection (4)(e) was substituted, as from 26 April 2005, by section 3(4) Property (Relationships) Amendment Act 2005 (2005 No 19).