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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.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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