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Same Sex De Facto Cohabitation Agreement

As we have touched on in this article “Same sex couples and the Law“, the law relating to same sex relationships has finally caught up with reality.  The family law recognises same sex partnerships and grants same sex couples rights largely equivalent to those of married couples (Family Law Act). As such you can now access a same sex cohabitation agreement.

Since being brought in under the Family Law Act, same sex couples can take advantage of their rights under the Act to create their own legally binding Agreement with regards to family and relationship issues, such as how assets and other financial matters will be dealt with.  Previously, these rights were reserved only for married couples, in what is often labelled a “pre-nup” agreement.

This is particularly relevant in light of the Act’s provisions which now empower a partner of a same sex de facto relationship to apply to the court for an order for the division of property or other assets.

To make an application, the relationship must have been for a period of at least 2 years.   This minimum 2 year period will not apply where the de facto relationship has been registered, if there are children of the relationship or where one party has made significant contributions to the other and it would be unfair not to allow the application.

If you are contemplating moving in with your partner, or are already living together, at some point you will need to address the practical issue of how finances are to be managed.

A couple may decide to pool their money and assets, or keep their accounts separate and split expenses between them.

Where de facto partners have accumulated significant assets prior to entering into the relationship (e.g. property, bank account funds, shares, etc), the couple may agree that each partner retain these assets separately.  Couples can formalise their agreement by creating a legally binding Financial Agreement.

Many couples are now becoming proactive and opting to create their own private Agreement, either before they move in together or during the course of the de facto relationship.

Couples can then simply enjoy the relationship as it unfolds, with reassurance and confidence that the practical financial issues have been dealt with and their interests protected.

Further resources

RP Emery & Associates provide legal kits for de facto couples.  To put your own professionally drafted and legally binding Financial Agreement into place or to obtain more information, select whether you are: