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 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.

The Law in WA

In WA the Family Court Act 1997 was amended in 2002 to deal with a number of issues relating to de facto relationships and principally that of the adjustment of property. .

Definition of a de facto relationship

A de facto relationship is defined by the Interpretation Act 1984 as a relationship between two people who live together in a marriage type relationship. It does not matter what sex the parties are either partner is legally married to someone else. The Act lists indicators of whether a de facto relationship exists but these indicators are not essential:

• 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 reputation and public aspects of the relationship

The legal position in the absence of an agreement

The aim of the WA legislation is to provide protection for couples who are or have been in de facto relationships and are not therefore protected by Federal legislation. Parties to a de facto relationship can make an application to the court for maintenance and or property adjustment orders. A court can only make an order if there has been a de facto relationship for at least 2 years, there is a child of the de facto relationship and a failure to make the order would result in serious injustice to the party seeking the order or a de facto partner has made substantial contributions and the failure to make an order would result in serious injustice. In making an application there is a requirement that one or both of the parties must be residing in WA on the date the application is made, they must have lived in WA for at least a third of the relationship or made substantial contribution in WA.

A de facto partner is only liable to maintain the other partner only to the extent that they are reasonably able to do so and only if the other partner is unable to support themselves adequately either because they are caring for children of the relationship, due to age, physical or mental incapacity or another adequate reason. The court is required to consider a number of factors set out in the Act concerning the personal circumstances of both parties and any children of the relationship to determine what order, if any, should be made. The court can also make an order to alter property interests. 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. An application must be made within 12 months of the end of the relationship unless the court has granted leave to apply outside this “application period”. Couples who have been in relationships for less than 2 years or do not meet the criteria will have to rely on common law remedies.

Types of WA 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 cohabitation agreement, known in WA as a financial agreement. This kit is aimed at situations when a relationship has broken down. In WA, agreements whether entered into before, during or at the end of a de facto relationship are known as financial agreements. For the purpose of this kit, we have referred to the financial agreement as a separation agreement. Parties to a former de facto relationship can enter into a financial (separation) agreement to determine how their property or financial resources are to be divided and also dealing with the maintenance of either of them. Financial agreements are subject to contract law but it is possible to make the agreement binding on both parties. Requirements for a binding agreement are follows: -

The agreement must be in writing, signed by both parties and contain certificates annexed to the agreement certifying that independent legal advice has been provided to both parties prior to signing the agreement. The effect of a binding agreement is that the court is obliged to follow the terms of the agreement unless there are reasons to set it aside. The court can only set the agreement aside in the following circumstances:

• the agreement was entered into by fraud ( and this can include the non-disclosure of a material matter);
• the agreement is void, voidable or unenforceable;
• circumstances have changed since the agreement was entered into making it impracticable for the agreement to be carried out;
• a material change has occurred since the agreement was made relating to the care, welfare or development of a child to the relationship and these circumstances would lead a child or a party to the agreement to suffer hardship if the agreement were to be enforced; and
• in respect to the making of the agreement, a party to the making of the agreement engaged in conduct which was unconscionable.

The need for legal advice prior to signing the agreement

A Financial agreement is subject to the laws of contract. However, if the agreement follows certain requirements which make it a binding agreement, then a court must follow the terms of the agreement unless it can be set aside, in the limited circumstances outlined above.

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.

If you use this kit to draw up an agreement and you choose not to get independent legal advice, the agreement will be subject to the laws of contract. We recommend that you seek independent legal advice prior to signing the agreement to ensure that the agreement is followed in the event of legal action and to ensure that you understand fully the implications of what you are signing.

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