DE FACTO SEPARATION AGREEMENTS

Property disputes between people of the same sex or opposite sexes who live together outside of marriage do not fall within the provisions of the Family Law Act. Disputes arising from their relationships 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.

Children

Children of a de facto relationship come within the jurisdiction of the Family Court and the matters dealt with in this Kit focus only on financial arrangements. Nothing in a separation agreement can affect the power of a court to make an order with respect to the right to custody of, maintenance of or access to children of the parties of the agreement.

The Law in VIC

In Victoria in 2001 the Law Amendment (Relationships) Act 2001 introduced amendments to the existing Property Law Act 1958. These amendments widened the definition of a de facto relationship, now referred to as a domestic relationship, to include same sex couples. The court can make property adjustment orders with regard to the property interests of one or both of the domestic partners.

Definition of a de facto relationship

A domestic relationship is defined in the Act as a relationship between two people who, although not married, are living together or have lived together as a couple on a genuine domestic basis (regardless of gender). All the circumstances of the relationship can be taken into account by the court to determine whether two people are in a domestic relationship and subject to the protections of the Act. The following circumstances can be considered:

• the duration of the relationship
• the nature and extent of common residence
• whether there is a sexual relationship
• the degree of financial dependence or interdependence
• ownership, use and acquisition of property
• degree of mutual commitment to a shared life
• the care and support of children
• the reputation and public aspects of the relationship

The legal position in the absence of an agreement

The aim of the VIC legislation is to provide protection for couples who are or have been in domestic relationships and are not therefore protected by the Family Law Act. Parties can make an application to the court for a property adjustment order at the end of a relationship. The court will make whatever orders seem just and equitable having regard to the financial and non-financial contributions made by the parties during the course of the relationship. Parties must have been in a domestic relationship for over 2 years in order to make an application unless there are children to the relationship or the failure to make an order would result in serious injustice to the partner making the application and that partner has made substantial financial or non-financial contributions during the course of the relationship, for which they would not be adequately compensated. Couples who have been in relationships for less than 2 years or do not fit within the exceptions mentioned will have to rely on common law remedies.

Types of VIC Agreements

Contemplating the end of a relationship can mean a great deal of financial uncertainty for the parties involved and the outcome of a property adjustment application described above is by no means certain. For that and other reasons parties may decide to enter into a legal agreement. This kit is aimed at situations when a relationship has broken down. Couples in these circumstances can enter into a agreement to determine how money and assets should be divided up. We refer to this agreement as a separation agreement in this kit although no specific term is used in the Victorian legislation. A separation agreement can be made in contemplation of the termination of a domestic relationship or after the relationship has already ended. The Property Law Act 1958 sets out no requirements for agreements between domestic partners save that they should be in writing. No domestic relationship agreement is binding on the court in Victoria. However, if an application for property adjustment is considered by the court, it is obliged to consider any written agreement between the parties.

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

The AussieLegal Separation Agreement – De Facto Kit will tell you what you need to know to enable you to draft a separation 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 separation agreement; and.
4. a draft agreement that can be edited.

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

AussieLegal can do all the hard work and have your separation 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.