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 South Australia

The relevant legislation is the De facto Relationships Act 1996 (South Australia) which came into force on 16 December 1996 and aims to facilitate the resolution of property disputes arising out of the termination of a de facto relationship.

Definition of a de facto relationship

A de facto relationship is defined in the Act as a relationship between a man and a woman, who although not legally married to each other, live together on a genuine domestic basis as husband and wife. There is no set definition of what amounts to living on a “genuine domestic basis”.

The legal position in the absence of an agreement

The aim of the South Australian 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. In order to make an application, a party must be resident in the State when the application is made, have lived in the State for the whole or a substantial part of the de facto relationship and the de facto relationship must have existed for at least 3 years or there is a child of the relationship. The application must be made within 1 year of the end of the relationship unless the court is satisfied that an extension is required to avoid serious injustice. The court will make whatever orders seem just and equitable and must have regard to the following:

• the financial and non-financial contributions made directly or indirectly by the de facto partners to the acquisition, conservation, or improvement or property of either or both partners; or the financial resources of both partners;
• the contributions (including home-making or parenting contributions) made by either of the de facto partners to the other partner or to children of the partners; and
• any relevant cohabitation agreement – {Please see the paragraph below explaining the status of any agreement}

The court may have regard to other relevant matters which includes the length of the relationship and the immediate financial needs of the parties. If de facto partners do meet the criteria for making an application under the de facto legislation (e.g. because they are in a homosexual relationship or the relationship lasted for less than 3 years and did not produce any children) they will have to reply on common law remedies in the absence of the agreement.

Types of South Australian 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. A Cohabitation Agreement is an agreement which either sets out how property should be divided on the termination of a de facto relationship or other financial matters relating to the de facto relationship. A Cohabitation agreement is recognised by the De facto Relationships Act 1996 but must be in writing and signed by both parties. The Act does not specify the point at which the agreement should be entered into or refer to the agreement by a different name if the agreement is entered into at the end of the relationship. This kit is aimed at situations when a relationship has broken down and we have referred to the agreement as a Separation Agreement although it still comes within the heading of a Cohabitation Agreements in terms of the legislation. The Act specifies that a Cohabitation (Separation) agreement is enforceable in accordance with the laws of contract. The court does have the power to set aside or vary an agreement if enforcement would lead to serious injustice. A court may have regard to a Cohabitation Agreement amongst the other factors it may take into account when considering a property adjustment application.

An agreement is a Certified Agreement if:

1. It includes a Warranty of Asset Disclosure (by which each party warrants that he or she has disclosed all relevant assets to the other) AND
2. The signature of each party is attested by a lawyer’s certificate and the certificates are provided by different lawyers.

A court cannot set aside or vary a certified agreement is it provides for the exclusion of the court’s powers to set aside or vary the agreement.

A court cannot make a property adjustment order which is inconsistent with the terms of a certified agreement if it provides for the exclusion of the court’s power to set aside or vary the agreement.

The need for legal advice prior to signing the agreement

If you use this kit to draw up a written agreement which you both sign, then the agreement will be subject to the laws of contract. If you meet the criteria, either you or your de facto partner could subsequently apply to the court for a property adjustment order. The court may take the terms of your agreement into account but will not be obliged to follow it. A certified agreement, however, can be binding on the court ensuring that you have some certainty in the event that your relationship breaks down. Either way, it is strongly recommended that you seek independent legal advice prior to signing the agreement so 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

AussieLegal can do all the hard work and have your separation agreement executed quickly and efficiently - no other costs involved:

• Your Agreement will be complete, compliant and fully enforceable;
• Save thousands in legal fees compared to other solicitors;
• The price is fixed - no surprises;
• Save time - we are very efficient at dealing with these agreements;
• Convenience - there is no need to make repeated visits to solicitors; and
• Our experience - we have helped hundreds of people establish their Agreements.

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