Financial Agreement in Contemplation of De Facto Relationship

In family law, people often confuse the law in relation to whether two people are in a de facto relationship. We hear from our clients that they believe if they lived with someone for 6 months that their partner could be entitled to half their superannuation, or if they lived with their significant other and redirected their mail then their assets would be protected from a family law claim.

The only legal way to protect your assets when you are contemplating a de facto relationship with your significant other is to enter into a financial agreement.

Under s 90UB of the Family Law Act 1975, if two people are contemplating entering into a de facto relationship with each other and those people make a written agreement about how all or any of their property or financial resources are to be divided upon their separation, then they have made a financial agreement.

Further, If both parties to the relationship agree that they intend to be married, it is possible for the agreement to be drafted under both s 90UB (in contemplation of a de facto relationship) and s 90B (in contemplation of marriage). This way you do not have to pay a second visit to your solicitor and go through the process again, unless you have acquired significant assets or there has been a significant change of circumstances and you agree to terminate the agreement or vary its terms.

For a financial agreement to be binding, it must comply with equitable contractual principles and sections 90KA and 90UN of the Act. Further it must comply with section 90G and/or section 90UJ of the Act which state that:

• the parties must have had legal advice about the advantages and disadvantages to that party of making the agreement;
• each party was provided with a certificate of legal advice before signing the agreement;
• the statement has been provided to the other party or their legal practitioner;
• each party has signed the agreement; and
• the agreement has not been terminated or set aside by a court.

If you are moving in with your partner or are contemplating living together on a genuine domestic basis, and you have assets that you would like to protect, it is a good idea to make an obligation-free appointment with a solicitor for our family law team to receive tailored advice to suit your needs. Contact Armstrong Legal.