DE FACTO SEPARATION AGREEMENTS
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 1975 (Cth) (except for couples with a geographic connection with Western
Australia or South Australia, where the de facto legislation relevant to those
States still applies).
The law provides that de facto couples can make cohabitation agreements known
as Financial Agreements before, during or after their relationship. The Family
Law Act s 90UD provides for Financial Agreements to be entered into by the
couple after the breakdown of their relationship. Financial agreements are
binding on parties if in writing, signed by both parties and with a certificate
annexed to the agreement certifying that both parties have received independent
legal advice prior to signing the agreement. The court can set aside an
agreement if: it was entered into by fraud, it would be impracticable to enforce
it, circumstances have changed, the contract is voidable or a party to the
agreement engaged in conduct that was unconscionable at the time of making the
The need for legal advice prior to signing the agreement
Legal advice is necessary to satisfy the legal requirements of Financial
Agreement. As long as the agreement follows certain requirements, then a court
must follow the terms of the agreement unless the circumstances of the parties
have changed so much since the agreement was made that enforcement of the
agreement would lead to serious injustice. The main requirements that will make
the agreement binding are as follows:
- the agreement is signed by both parties;
- each party was given independent legal advice prior to signing the
agreement, as evidenced by a certificate attached to the agreement and
- after signing the original agreement is given to one of the parties and a
copy is given to the other party or parties.
The parties’ signatures should be witnessed by another independent person.
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.
Definition of a de facto relationship
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.
Children of a de facto relationship come within the jurisdiction of the
Family Court. Nothing in a termination 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.
De Facto Relationships That Break Down On Or After 1 March 2009
The Family Law Act 1975 (Cth)
The Family Law Act Part VIIIAB applies to de facto relationships that break
down on or after 1 March 2009. The new features of the laws are that the Family
Court now has the power to make orders in respect of a division of property and
maintenance for couples in a de facto relationship. De facto couples may also
now split their superannuation.
The Commonwealth laws apply to couples whose de facto relationship has a
geographical connection with one or more of the following States and
- New South Wales
- The Australian Capital Territory
- The Northern Territory
- Norfolk Island.
Whilst the de facto legislation of the above States and Territories remains
in force, they have referred their powers to the Commonwealth in the area of de
facto law. (The State de facto legislation of the non-referring States, South
Australia and Western Australia, continue to apply to de facto couples who
reside in those States.)
Each party to the agreement must obtain independent legal advice about their
agreement and a certificate to that effect signed by each of their solicitors
who provided the advice. The agreement is required to be: in writing, signed by
both parties and accompanied by a certificate produced by a separate solicitor
for each party confirming that legal advice was obtained and that all the
implications of signing the agreement were fully explained.
De Facto Relationships That Break Down Before 1 March 2009
State and Territory laws continue to apply to couples whose relationship
broke down before 1 March 2009, although they may elect to be brought under the
Commonwealth laws by entering into a Financial Agreement under the Family Law
Couples who made a Binding Financial Agreement under State or Territory laws
cannot elect to apply the Commonwealth laws, unless the Agreement is of no
effect due to the property not having been distributed or the maintenance not
having been paid.
Binding Financial Agreements made under State or Territory law before 1 March
2009 continue to apply.
Couples who have obtained final court orders about their property or for
spousal maintenance payments under a State or Territory law cannot elect to
apply the Commonwealth laws.
Below is a list of the de facto legislation in each of the referring States
- New South Wales - Property (Relationships) Act 1984
- Northern Territory - De facto Relationships Act 1991
- Australian Capital Territory - Domestic Relationships Act 1984
- Queensland – Property Law Act 1974 (as amended by the Property Law
Amendment Act 1999)
- Tasmania - Relationships Act 2003
- Victoria - Relationships Act 2008
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