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 the ACT

The Domestic Relationships Act 1984 governs de facto relationships in the ACT which are referred to as domestic relationships or partnerships.

Definition of a domestic (de facto) relationship

A de facto relationship is referred to in the Act as domestic relationship. A domestic relationship means a personal relationship between 2 adults, in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other and includes a domestic partnership but does not include a legal marriage. A domestic partnership is the relationship between two people whether of a different or the same sex living together as a couple on a genuine domestic basis

The following circumstances can be taken into account by the court to determine whether two people are in a domestic partnership and subject to the protections of the Act:

• 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

The legal position in the absence of an agreement

The aim of the ACT 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 and / or property adjustment orders at the end of a relationship. With regard to an order for maintenance, the applicant must demonstrate that they are unable to support themselves adequately either by reason of having the care of any children to the relationship or because the applicant’s earning potential has been adversely affected by the circumstances of the relationship. The court will make whatever property adjustment 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 a party can demonstrate that they have made substantial contributions during the course of the relationship for which they would not otherwise be compensated. Couples who have been in relationships for less than 2 years and have no children together will have to rely on common law remedies.

Types of ACT 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 or maintenance application described above is by no means certain. For that and other reasons parties may decide to enter into a cohabitation agreement, known in ACT as a domestic relationship agreement. This kit is aimed at situations when a relationship has broken down. Couples in these circumstances can enter into a separation agreement, known in ACT as a termination agreement to determine how money and assets should be divided up. A termination agreement can be made in contemplation of the termination of a domestic relationship or after the relationship has already ended. If the agreement is in writing, signed by both parties and includes certificates confirming that legal advice was given to each party prior to signing, the court will not make an order which is inconsistent with the terms of the agreement. If the agreement was signed without obtaining legal advice, the court will have regard to the agreement but is not obliged to follow it. The court can set aside or vary the terms of the agreement notwithstanding that legal advice was given but only if satisfied that enforcement of the agreement would lead to serious injustice.

The need for legal advice prior to signing the agreement

A Termination agreement is subject to the laws of contract. However, if the termination agreement follows certain requirements, then a court must follow the terms of the agreement unless satisfied that enforcement of the agreement would lead to serious injustice. The requirements that will make the agreement binding are as follows:

1. the agreement is in writing;
2. it is signed by both parties; and
3. each party was given independent legal advice prior to signing the agreement, as evidenced by a certificate attached to the agreement.

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 which you both sign, 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.

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.