DE FACTO SEPARATION AGREEMENTS

The Legal Context

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.

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 QLD

The Property Law Act 1974 (the Act) was amended by the Property Law Amendment Act in 1999 to include a section to provide protection for the property interests of couples in de facto relationships. The purpose of the Act is to facilitate the resolution of financial matters in a fair and equitable way at the end of a de facto relationship.

Definition of a de facto relationship

A de facto relationship is defined in the Act as a relationship between de facto partner. A de facto partner is defined as either 1 of two adult persons who live together as a couple on a genuine domestic basis and are not married to one another or related by family. Any of the circumstances of the relationship can be taken into account by the court to determine whether two people are in a de facto relationship and subject to the protections of the Act. The following circumstances can be considered:

• the nature and extent of their common residence
• the length of the relationship
• 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 performance of household duties
• the reputation and public aspects of the relationship

The legal position in the absence of an agreement

The aim of the QLD legislation is to provide protection for couples who are or have been in de facto 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. In deciding what is just and equitable the court must consider the following:

• the age and health of the parties
• the income, property and financial resources of each party
• the physical and mental capacity of each for gainful employment
• whether either party has the care of children
• necessary commitments to support themselves and any children or dependents
• responsibility to support others
• eligibility for government assistance
• the appropriate standard of living for each in all the circumstances
• contributions made by each to the income and earning capacity of the other partner
• the length of the relationship
• the extent to which the relationship has affected the earning potential of each of the parties
• if either party is cohabiting with another, the financial circumstances of that cohabitation
• the requirement to pay child maintenance

Parties must have been in a relationship for over 2 years in order to make an application unless there are children to the relationship or one of the partners has made substantial contributions during the course of the relationship and the failure to make an order would result in serious injustice to the party concerned. An application must be made within 2 years of the end of the relationship unless the court has given an applicant leave to apply out of time. Couples who have been in relationships for less than 2 years and do not meet the exceptions mentioned will have to rely on common law remedies.

Types of QLD 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 an agreement, known in Queensland as a Cohabitation Agreement. This is made by de facto partners either in contemplation of the start of a de facto relationship or during the course of the relationship. This kit is aimed at situations when a relationship has broken down. Couples in these circumstances can enter into an agreement, known in Queensland as a Separation Agreement to determine how money and assets should be divided up. A separation agreement can be made in contemplation of the termination of a de facto relationship or after the relationship has already ended. A Recognised Agreement means a cohabitation or separation agreement which is a written agreement, signed by the de facto partners and witnessed by a J.P or solicitor and contains a statement of all significant property, financial resources and liabilities of each de facto partner when the partner signs the agreement. If an agreement is a recognised agreement, the court may not make an order which is inconsistent with the terms of a recognised agreement although the court can make an order varying the terms of the agreement if enforcement of the agreement would lead to serious injustice to one of the parties or circumstances have changed since the agreement was made making it impracticable for the agreement to be carried out.

The need for legal advice prior to signing the agreement

A Separation Agreement is subject to the laws of contract. If the agreement was entered into by fraud, mistake, duress or undue influence, the laws of contract will apply. As explained above, if the parties follow the requirements and enter into a recognised agreement, this must be followed by the court in most circumstances. There is no requirement that parties seek independent legal advice prior to signing the agreement however this is strongly recommended. The effect of a recognised agreement can have serious financial implications for the future and it is important that parties fully understand the implications of what they are signing. The legislation does offer some protection from serious injustice or a change of circumstances since the time the agreement was entered into. You will note that the agreement provided includes certificates which are annexed to the agreement confirming that each party had independent legal advice prior to signing the agreement. This is not a requirement under the legislation but is recommended.

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.

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