The third party provisions of the Family Law Act give explicit
power to the Family Court to alter the rights of third parties as
part of family law property proceedings. This means that the Family
Court can make an order or grant an injunction that is directed to,
or alters the rights, liabilities or property interests of a third
party. In simple terms, the Court can make an order that affects
people other than the husband and wife (or former de facto
partners) involved in the proceedings.
Though the exercise of the power is limited to matters which
fall within matrimonial proceedings, the impact of a
marriage breakdown extending to creditors, businesses, companies,
trusts and other third parties cannot be underestimated.
What is a "third party"?
A third party is defined very broadly as "a person (or
entity) who is not a party to the marriage". In practice, the
third party most often joined into family court proceedings are one
of the following:
the parents or siblings of the parties to the marriage;
the entities in which the parties to the marriage are involved
in such as companies and trusts.
When do the third party provisions apply?
Parties cannot contract out of the third party
provisions of the Family Law Act, with one limited exception
– being where there is a binding financial agreement.
Section 90AC of the Family Law Act also provides that the third
party provisions of the Family Law Act are effective:
despite anything to the contrary in any other law of the
Commonwealth, State or Territory;
despite anything in a trust deed or other instrument
Any act done by a third party in compliance with an order of the
Family Court made under the third party provisions also overrides
the other law or instruments referred to above and is deemed not to
be in contravention of those law or instruments.
However, the Family Court may only interfere with third party
property interests if certain criteria are met, including whether
the involvement of a third party is reasonably necessary to ensure
the married parties obtain their just and equitable entitlements at
Obtaining advice about the operation of third party provisions
in your matter
Third party involvement in Family Court proceedings can be
technically complex and can be expensive if not dealt with
We recommend that you obtain expert advice if you are a third
party or potential third party in Family Court proceedings.
Similarly, if you are a party who wishes to join a third party to
your Family Court proceedings, we also recommend that you obtain
expert advice as the ramifications of an unnecessary joinder may
result in your Family Court proceedings becoming more complex, time
consuming and expensive than would otherwise be the case.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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