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 Tasmania

In Tasmania, de facto relationships are covered by the Relationships Act 2003. The Act defines personal relationships as either “significant” or “caring” relationships.

Definition of a personal relationship

In Tasmania, a personal relationship is either defined as being significant or caring. A Significant relationship is defined as a relationship between two adults who have a relationship as a couple and are not married or related. All the circumstances of the relationship can be taken into account in determining whether 2 people are in a significant relationship including the following:

• the length of the relationship
• where the parties live
• 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

A caring relationship is a relationship other than a marriage or significant relationship between 2 adults whether or not related by family where one or each provides the other with domestic support and personal care. This does not amount to a caring relationship where this support or care is provided for fee or payment or under an employment relationship or on behalf of an agency such as a government body or charity. All the circumstances of the relationship can be taken into account in determining whether a caring relationship exists, including the following:

• the length of the relationship
• the nature and extent of common residence
• the degree of financial dependence or interdependence
• ownership, use and acquisition of property
• degree of mutual commitment to a shared life
• the reputation and public aspects of the relationship
• the performance of household duties
• the level of personal care and domestic support provided by one or each

The legal position in the absence of an agreement

The aim of the Tasmanian 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 maintenance or a property adjustment order at the end of a relationship. In terms of maintenance, one party is not liable to support the other but an order can be made if the court is satisfied that the applicant is unable to support themselves adequately because their earning potential has been adversely affected by the circumstances of the relationship or from any other reason arising from the circumstances of the relationship. The court is required to consider a series of factors regarding the relationship and the circumstances of each partner. In respect to property adjustment, 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 and all the circumstances 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 applicant has made substantial contributions during the course of the relationship for which they would not otherwise be adequately compensated or they have the care and control of a child of the other party and the failure to make an order would result in serious injustice. Couples who have been in relationships for less than 2 years or do not meet the other criteria mentioned will have to rely on common law remedies.

Types of Tasmanian 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 who are not married may enter into an agreement, known in Tasmania as a Personal Relationships Agreement. This kit is aimed at situations when a relationship has broken down. Couples in these circumstances can enter into 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 personal relationship or after the relationship has already ended. If the agreement is in writing, signed by both parties and contains a certificate to the effect that both parties obtained independent legal advice prior to signing the agreement, the court will not make an order which is inconsistent with the terms of the agreement. If the agreement does not meet these criteria, the court may have regard to the terms of the agreement but can make an order as though the agreement did not exist. If the agreement meets the criteria, it can be varied or set aside only if the court is satisfied that the circumstances of the parties have so changed that to enforce the agreement would lead to serious injustice. If the agreement does not meet the criteria, it can be varied or set aside if entered into by duress or fraud or any other way a contract may be set aside.

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

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