RP Emery and Associates - Legal Publishers Since 1990
Category A-Z
HomeAbout UsBlogBusiness ContractsPeople and Relationship ContractsReal Estate ContractsCheck OutMembers

Defacto and Marriage Contracts and Resources in Australia

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.

What is a Financial Agreement?

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.

Marriage

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)

Prenuptial Agreement Template Kit

prenutpital agreement coverA Prenuptial Financial Agreement is an agreement made before the wedding.

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.

Same Sex Prenups

To view our Same sex prenup agreements for Gay Male or Lesbian couples please visit our sister site - FinancialAgreements.com.au

Can I force my partner to sign a Prenup?

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

Are prenups absolutely necessary?

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?

When can you make a prenup?

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.

Learn: Why a last minute prenup is a really bad idea

What is a Postnup Agreement?

postnuptial agreement kit coverA Post-Nuptial agreement operates in a similar way to a Pre Nuptial agreement, except it is made after the wedding.

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.

Get a Postnuptial Financial Agreement Kit

To view our Same sex post nup agreements for Gay Male or Lesbian couples please visit our sister site - FinancialAgreements.com.au

De facto or cohabitation

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.

What is a cohabitation agreement?

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 defacto 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 defacto agreements are covered by the Family Court Act.

Learn: Real Life Scenarios for Cohabitation Agreements

Pre Cohabitation Agreement Template Kit

Pre cohabitation Agreement template for states other than western australiaThis 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 :)

Cohabitation Agreement Template Kit

Cohabitation Agreement coverThis 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.

Western Australian Agreements

We offer a full range of defacto agreements for Western Australia (WA).These professionally drafted kits are written to comply with the Family Court Act 1997.

Precohabitation agreement for western Australia

Cohabitation Agreement for western Australia

Learn: How to talk to your partner about a cohabitation agreement?

What about Same Sex Couples?

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:-

  • property division;
  • maintenance;
  • parenting (custody) issues;
  • child support; and
  • superannuation splitting.

Same Sex Financial Agreements for Cohabitation and Pre-cohabitation

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.

Learn: Same Sex Laws and Cohabitation

Financial Agreements and the Required Legal Advice

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

  • A statement in the body of the agreement by the parties to the effect that they have received legal advice independent of each other and
  • A certificate from the legal adviser that the advice has been provided. 

This prevents either party from arguing that, when signing the agreement, they did not understand what they were signing or its consequences.

With this in mind we have negotiated a reduced rate for our customers with several independent, nationally licensed lawyers who can provide the required advice by telephone and e-mail.

Learn: Video - Why do I need Legal Advice for a Financial Agreement?

Infographic: How to put together your own Financial Agreement

How to put together a financial agreement

 

Estate Planning and Financial Agreements

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.

Making a Will

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.

What if I don’t have a Will?

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

When should I review my Will?

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:-

  • you get married or enter into a de facto relationship;
  • you separate or get divorced;
  • you have children;
  • the executor is no longer willing or able to act;
  • a beneficiary, spouse, executor or trustee dies;
  • the asset pool changes and specific assets bequeathed in the Will have been sold and/or new assets have been brought. 

Resources

When can my de facto partner make a claim on my assets? 

time limitDe facto couples often wonder about the legal time limits that apply to their relationship, in particular those associated with making an application to the Court for a property settlement order. De facto couples do enjoy the same rights as married couples under Australian Law but those rights do not automatically apply.

Same Sex Custody Case decided in Best Interests of Children

CustodyA custody battle between a same sex couple over custody rights to their two children conceived by IVF, was decided just like any other custody dispute.

Estate Planning for families

estate planning for familiesContemplating death is not a particularly happy subject but it is necessary if you want some control over how your loved ones will be cared for when you die or if you are incapacitated.

Sexually Transmitted Debt Part 1

sexually transmitted debtThe term "Sexually Transmitted Debt" is used to describe debt incurred by one party in a relationship on account of the other. Women are more likely than men to incur an STD. Sexually transmitted debt usually takes one of the following

Sexually Transmitted Debt Part 2

incurring debt through intimate relationshipIn Part 1 we explained what an STD is and how they can occur, Part 2 looks at practical tips for avoiding them. The key tip is learning to communicate with your partner about financial matters and building trust before commingling finances.

How to stop fighting about money

money conflictMoney is a major source of conflict in personal relationships. Open and honest communication about financial goals and money habits is a useful strategy for minimising money arguments.

 

 

 


RP Emery and Associates - Legal Contract Templates Reviews


Solid Legal Protection

Australian
Law

Lawyer
Prepared

Instant Download

Plain English
Easy to Follow

Editable Template

Use Again
and Again

guarantee