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 re-directed 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.
Pursuant to s 90UB of the Family Law Act 1975 (Cth), 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 Financial Agreement to be drafted pursuant to 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, vary the terms of the Agreement and execute a Financial Agreement pursuant to section 90B.
In order for a Financial Agreement to be binding, it must comply with equitable contractual principles and sections 90KA and 90UN of the Family Law Act. Further it must comply with section 90G and/or section 90UJ of the Act which states that:
- The parties must have had legal advice in relation to 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.
WHERE TO NEXT?
Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?