COHABITATION AGREEMENTS UNDER DE FACTO LAW

Cohabitation agreements are literally agreements made between parties who are living together and who are not married and do not intend to get married.

People who intend to marry and who wish to enter into an agreement concerning their relationship would enter a pre-nuptial agreement (or financial agreement under Section 90B of the Family Law Act 1975).

Cohabitation agreements are much the same as a de facto agreement. A de facto agreement in many States normally refers to two people of different sexes living in a de facto relationship. In Western Australia it can be between people of the same sex. Such agreements can also be referred to as cohabitation agreements.

While there are a variety of different legal definitions of “de facto relationship”, for the purposes of the Kit we essentially describe “de facto relationship” as people of the opposite sex living together as husband and wife.

Unless the agreement specifies otherwise, the effect of the cohabitation agreement could continue even though the parties subsequently decide to marry. It would then operate as a pre-nuptial agreement, but there should be reference to the relevant Sections of the Family Law Act in that event.

Property disputes between people of the same sex or opposite sex who live together outside of marriage do not fall within the provisions of the Family Law Act. Disputes arising from their relationship are normally determined by the law relevant to the State in which they reside. All the States and Territories in Australia now have specific de facto legislation. However, not everyone in a de facto relationship is covered by the legislation. For example, in Western Australia you need to have been in a de facto relationship for at least two years, except in limited circumstances.

In 2001 in Victoria, amendments were made to the existing Property Law Act 1958 which governs the respective rights of de facto couples, including same sex couples. Details of the new law are included in the AussieLegal Cohabitation Agreement - De Facto Kit.

Even though de facto legislation now exists and applies in many cases, any dispute arising out of a failed relationship can be costly and time consuming. For that and other reasons parties may decide to enter into a cohabitation agreement. Cohabitation agreements before, during or after the end of the relationship in Western Australia clearly set out:

• which assets were brought by each of the parties into the relationship,
• how the continued ownership of those assets is to be dealt with and the use of those assets, and
• what should happen in the event that the relationship breaks down.

The legislation specifies certain factors that need to be taken into account. If agreements meet the criteria set out above, they may be followed by the court in the event of a later dispute.

Additionally, the agreement:

1. needs to be in writing;
2. needs to clearly identify you and the other party;
3. perhaps state whether it is the intention of the parties to marry or not;
4. needs to set out in detail both yours and the other party’s financial positions as indicated above (that is all assets, liabilities and financial resources);
5. needs to set out in detail what you seek to happen during the course of the relationship and upon the breakdown of the relationship, should that eventuate. The provisions should cover the various assets, liabilities and superannuation entitlements, as well as any assets acquired by either or both of you during the course of the relationship;
6. may set out what is to happen during or after the relationship about the maintenance of either of the parties.
7. needs to include a provision at the end of the agreement to make it clear that each of you have obtained independent legal advice. If you want to be protected in the event of a later dispute, the legal practitioner must certify certain independent legal advice was given;
8. needs to make it clear that it is intended by the parties that the property dealt with in the agreement is not to be made the subject of subsequent orders in another court;
9. be signed by the parties; and
10. the parties’ signatures be witnessed by another independent person – this is not a legal requirement but simply good practice in the event that the agreement is challenged.

In the event that a dispute subsequently arises and you want the agreement enforced, it is essential that both parties comply with the terms of the agreement during the relationship.

Children of a de facto relationship come within the jurisdiction of the Family Court and the matters dealt with in the AussieLegal Cohabitation Agreements – De Facto Kit focus only on financial arrangements.

Cohabitation Agreements under De Facto Law (D.I.Y. template agreements) $89.95

The AussieLegal Cohabitation Agreement – De Facto Kit will tell you what you need to know to enable you to draft a cohabitation agreement. Included in the Kit are:

1. instructions about this subject;
2. a checklist to ensure you consider all matters;
3. an example of a cohabitation agreement; and.
4. a draft agreement that can be edited.

Cohabitation Agreements Plus (including legal certification for you AND your partner) $1,350.00

AussieLegal can do all the hard work and have your Domestic Agreement executed quickly and efficiently - no other costs involved:

• Your Agreement will be complete, compliant and fully enforceable;
• Save thousands in legal fees compared to other solicitors;
• The price is fixed - no surprises;
• Save time - we are very efficient at dealing with these agreements;
• Convenience - there is no need to make repeated visits to solicitors; and
• Our experience - we have helped hundreds of people establish their Agreements.

Call 1300 728 200 for more information or click on the link above.