3.5.5 Severability (Registering Some Clauses in an Order & not Others)

Context

A court order or court registered maintenance agreement may contain clauses that cannot be registered under the child support legislation. If the clauses are severable, the Registrar will register the acceptable parts of the court order or agreement only.

Act references

CSRC Act section 17, section 17A, section 18, section 18A

Description

A court order or court registered maintenance agreement which contains clauses that can be accepted and registered under the child support legislation may also contain other clauses that cannot. The Registrar will register the acceptable parts of the court order or agreement only if the unacceptable clauses are 'severable' (i.e. registering only the acceptable clauses does not change the essential nature of the order or agreement). The Registrar will refuse the application for registration of the entire order or agreement if the unacceptable clauses are NOT severable.

A court order may include a clause discharging an original order for maintenance and a clause providing for payments at a different rate from that stated in the original order. The intention of the later order is to vary the rate of payment of the earlier order rather than to discharge the maintenance liability entirely. If the Registrar cannot give effect to the clause providing for payment of child maintenance at a different rate, for example, because it was not for a periodic amount payable to the payee (3.2.1), then the Registrar cannot give effect to the clause which discharges the original orders.

Where a court order provides for a periodic amount of maintenance but also contains a clause regarding exchange of property, the Registrar can register the periodic amount of maintenance and 'sever' it from the property clause.

Last reviewed: 1 July 2016