DE FACTO COHABITATION AGREEMENTS

Cohabitation agreements are agreements made between parties who are living together or intend to live together in a de facto relationship and who are not married. Under the Family law Act 1975 (Cth) such agreements are called Part VIIIAB Financial Agreements. From 1 March 2009 property entitlements and payment of spouse maintenance for separating de facto couples are brought within Commonwealth laws under the Family Law Act 1975.

People who intend to marry and who wish to enter into an agreement concerning their relationship would enter into a separate Financial Agreement called a pre-nuptial agreement.

The Family Law Act (s 4AA) defines “de facto relationship”, as a couple living together on a genuine domestic basis, who are not married to each other and who are not related by family. The Act stipulates that a de facto relationship can exist between a man and a woman and between 2 persons of the same sex. A de facto relationship can exist even if one of the persons is married to someone else.

Property disputes between people of the same sex or opposite sex who live together outside of marriage now fall within the provisions of the Family Law Act. The de facto legislation of the States and Territories in Australia continue to apply to couples whose relationship broke down before 1 March 2009. (However, couples in that situation may choose to be covered by the new Commonwealth laws by entering into a Financial Agreement under the Family Law Act.

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 Financial Agreement which clearly sets 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 in the Family Law Act, they may be followed by the court in the event of a later dispute.

The requirements of Financial Agreement include the following:

1. Need to be in writing;
2. Need to clearly identify you and the other party;
3. Perhaps state whether it is the intention of the parties to marry or not;
4. Need to set out in detail both yours and the other party’s financial positions (that is all assets, liabilities and financial resources);
5. Need 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. Need to include a provision at the end of the agreement to make it clear that each of you have obtained independent legal advice and a certificate to this effect needs to be annexed to the agreeement. If that is not the case and one party has not obtained his or her own legal advice, then the agreement should provide that he or she was invited to obtain independent legal advice, but declined to do so;
7. 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;
8. Be signed by the parties; and
9. The parties’ signatures should be witnessed by another independent person. (NB. This is not a requirement in the relevant legislation but is good practice in the event that there is a challenge to the validity of the agreement.)

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.

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

AussieLegal can do all the hard work and have your cohabitation agreement prepared quickly and efficiently - no other costs involved:

• Your Agreement will be complete, compliant and fully enforceable;
• This service includes independent legal advice for both parties and certification;
• 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.