Do I Need a Cohabitation Agreement in Australia?
If you are considering marriage or are in a long-term de facto relationship, it is important to understand your legal options which can help you secure your financial future.
While no one intends for a marriage or relationship to break down, the fact that one in three Australian marriages ends in divorce means that it is prudent to consult an experienced family lawyer and discuss potential contracts which can help safeguard your future plans.
One excellent option is a Cohabitation Agreement, which can be an effective way to ensure that assets belonging to you and your partner are legally protected in the case of separation. Here, we provide an overview of Cohabitation Agreements and some of their benefits.
What is a Cohabitation Agreement?
A Cohabitation Agreement is a legal document between two parties which specifies what will happen to various assets in the case of a future separation. The parties to a Cohabitation Agreement are essentially “contracting out” of having their assets divided pursuant to the Family Law Act (‘the Act’), in the event of their separation.
This document is a type of Binding Financial Agreement (BFA) which is regulated under the Family Law Act (1975). These agreements can cover some or all assets belonging to either party, meaning that they are an excellent way to ensure that you will maintain ownership of certain assets in the event of a relationship breakdown.
The most common Cohabitation Agreement is a Pre-nuptial Agreement, which is signed before marriage and determines what will happen to certain assets, property and debts owned by the parties in the event of a divorce.
In accordance with the Family Law Act (1975), Binding Financial Agreements can also be formalised before and during de facto relationships, as well as during the course of a marriage.
Why Should I Consider Getting a Cohabitation Agreement?
While a Cohabitation Agreement is non-compulsory for couples living together in Australia, provided they comply with the requirements in the Act, they are legally binding once entered into. This makes them an excellent way to ensure that you get a say over what happens in the event of a separation.
There are numerous reasons why couples create cohabitation agreements, including:
- Securing assets and financial resources - after creating and signing the Agreement, if separation occurs, your future financial arrangements are already provided for. Assets which can be secured may include money, property, heirlooms and business interests.
- Prevention of potential future complications - A divorce or separation, particularly when acrimonious, can make the process of dividing assets complex and stressful. Financial Agreements minimise this complexity by creating a binding, proactive way of ensuring that both partners have clarity regarding their future security and are satisfied with their end of the contract from the get-go.
Are Binding Financial Agreements always upheld by a Court?
There are strict requirements in the Act which must be complied with, otherwise the Agreement may not be binding.
Even if the Agreement is binding, there are certain circumstances where the Family Law Courts can exercise their discretion to set aside a Binding Financial Agreement including situations where:
- If there is a child or children of the relationship born after the Agreement has been signed, and the Agreement (if not set aside) would result in financial hardship to the parent who has the primary care of the children
- If the court finds that a party in the relationship was coerced or pressured into signing the Agreement, and/or if the Agreement is found to have been unreasonably inequitable such that the Court considers one party must have been unduly pressured by the other so as to reduce their ability to make rational decisions regarding the Agreement.
- If there has been non-disclosure of a material fact.
Because of the complexities surrounding this area of law, it is important you seek advice from a specialist family lawyer in the event that you are considering entering into a Cohabitation/Financial Agreement.
Considering a Cohabitation Agreement?
If you are weighing up your options regarding a cohabitation agreement, we can help. At Pullos Lawyers, our experienced family lawyers can help you create arrangements which seek to ensure that your future interests are protected. We can also assist with property settlements overseas, LGBT law, spousal maintenance and many more family law issues.