Most people are looking for someone to love who loves them back. People fall in love all the time and choose to share their lives in an intimate way. Some couples move in together (de facto coupling) and others enter into the formal institution of marriage.
In Australia, the law treats married and de facto couples similarly, giving them the same rights when it comes to property settlement after a relationship breakdown.
If you are getting married or moving in with someone, you may want a way to determine, with certainty, what will happen to your property if the relationship breaks down. You can achieve that certainty by using a Binding Financial Agreement.
A Financial Agreement is a document that allows you to choose how to divide property and financial resources in the event of a relationship breakdown.
Married or separating couples and those contemplating marriage have been able to make financial agreements for many years. In March 2009, the Family Law Act 1975 was amended, allowing de facto couples (hetero or same sex) to use them as well.
You can make a financial agreement before the wedding day (prenuptial agreement or prenup) or after the wedding day (postnuptial agreement or postnup). Both these agreements achieve the same goal – the only difference is in the timing (and the section of the Family Law Act)
This type of agreement can be made by any couple who intend to marry and who wish to define their respective property rights and liabilities in the event of a relationship breakdown or the death of a partner.
The Prenup becomes a legal expression of the intent of the couple, who wish to set out how their property should be divided in the event of a marriage breakdown.
A prenup agreement is made under section 90B of the Family Law Act.
To view our Same sex prenup agreements for Gay Male or Lesbian couples please visit our sister site – FinancialAgreements.com.au
Whilst a prenup may not be a big deal these days – one party cannot just draft an agreement and expect the other party to sign it.
Australian legislation sets out strict guidelines as to how a prenup or any other financial agreement should be made.
Learn: Prenup – Just Sign it
Whether a prenup is absolutely necessary would depend very much on your personal circumstances. If you need to protect assets then you may consider it necessary but if you don’t need to protect assets then you might not. Remember too that it’s not just about assets – you may want to quarantine debt.
Learn: Are prenups necessary?
It is best to finalise your prenup agreement well before the wedding – a couple of months before the wedding day is a good rule of thumb. If you are running out of time to do a prenup then consider a Postnup.
Typically these agreements are used to preserve separate property such as real estate, business interests, an inheritance or other assets if the marriage were to break down.
To view our Same sex postnup agreements for Gay Male or Lesbian couples please visit our sister site – FinancialAgreements.com.au
Once a relationship moves to the more serious phase of living together or sharing finances, then the more mundane practicalities of partnering up become important. Legally you may be classed as a “de facto couple” and this carries certain rights and responsibilities.
Determining if you are in a de facto relationship is not always black and white. Here is a good rule of thumb – if you are living as man and wife (without the marriage certificate) or to say it another way – you are mutually committed to a shared life as a couple living together on a genuine domestic basis, then you have fulfilled the definition.
In Australia, the law now grants de facto couples rights comparable to those of married couples. This includes the right to apply to the Court for orders for the division of property. That is, if you have been living as a de facto couple for more than two years, you have the right to ask the court to divide your joint property pool or award spousal maintenance. Any claim must be lodged within 2 years of separation.
A cohabitation agreement is simply another name for a binding financial agreement.
Financial Agreements are a legal tool that you can use to clarify how assets and liabilities are owned, in what proportions and what should happen in the event that the relationship comes to an end at a later time.
Cohabitation or de facto financial agreements work in the same manner as marriage agreements in that you can make one BEFORE you move in together or AFTER you’ve moved in together. These agreements cover the same types of concerns as marital agreements but they are covered by different sections of the Family Law Act, unless you live in except Western Australia where de facto agreements are covered by the Family Court Act.
This financial agreement kit is for couples intending to live together (but not yet sharing a residence) and is written to comply with Section 90 UB of the Family Law Act 1975 – suitable for couples who live in any state except Western Australia.
Please scroll further down for our Western Australian Agreements 🙂
This financial agreement kit is for couples who are already living together and is written to comply with Section 90 UC of the Family Law Act 1975- suitable for couples who live in any state except Western Australia.
We offer a full range of de facto agreements for Western Australia (WA).These professionally drafted kits are written to comply with the Family Court Act 1997.
Since 2009 same-sex couples have had the same rights as any other de facto couple. More recently, the Marriage Act 1961was amended to redefine marriage as ‘the union of 2 people to the exclusion of all others, voluntarily entered into for life’, giving Same-Sex couple the right to marry.
Same-sex couples living in Australia now enjoy substantial rights and avenues of legal recourse that were once only enjoyed by conventional married couples (man and wife).
The Family Law Act grants same-sex couples legal avenues to address family related matters including:-
RP Emery also has kits for same sex couples. They are the same documents essentially but are written for either gay male or lesbian couples.
It is a requirement of the Family Law Act that each party needs to obtain independent legal advice (as to the advantages and disadvantages of entering into the Agreement) before the agreement becomes legally binding.
Before your financial agreement becomes legally binding it must contain
This prevents either party from arguing that, when signing the agreement, they did not understand what they were signing or its consequences.
A Financial Agreement is an effective tool for couples to determine ownership of assets and/or liabilities of a marriage or de facto relationship.
The Family Law Act states that a Financial Agreement will continue to operate despite the death of a party, in favour of, and be binding on, the legal representative of that party. (Refer to ss 90DA(1A) and 90H for married couples and ss90UF(2) and 90UK for de facto couples).
This means, the agreement remains in force despite the death of a party and is binding on the parties estate – essentially dead or alive you are bound to keep your word regarding the financial agreement.
Although a Financial Agreement can be effective at setting out the ownership of assets and liabilities of an existing or past relationship, it does not take the place of a Will.
Parties to a Financial Agreement are advised to draw up a Will to enable their assets to be legally transferred in accordance with their wishes.
A person is not prevented from leaving property or assets to a partner (or ex-partner) even though a Financial Agreement exists between them.
All of our Financial Agreement Kits include a Last Will and Testament template.
If a Will is not in place, any assets and liabilities will be dealt with according to strict rules and procedures governed by your particular State.
This may result in a drawn out process which does not take into account your personal situation or your preferences of who is to receive your assets. See more
It is advisable to review your Will frequently to ensure it still reflects your wishes as your life changes and evolves.
In particular, you should make immediate steps to review and if necessary, update your Will if:-
De facto couples are entitled to much of the same financial, property, and parental rights that the law affords to married couples. In this article, we’ll answer some frequently asked questions to help you understand how the law defines and identifies de facto relationships.
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