Recent changes in the law for financial agreements: De facto couples now have the same rights as married couples

As of 1 March 2009, the law relating to financial agreements made between persons in de facto partnerships has changed, due to the new amendments made to the Australian Family Law Act.

Following are the significant changes to Family Law legislation that affect de facto parties with regard to financial agreements:

  • Amendments to laws relating to de facto couples wishing to secure their financial interests in the event of a relationship breakdown came into effect as at 1 March 2009, under Part VIIIAB of the Family Law Act.
  • Before 1 March 2009, persons in de facto partnerships could only enter into two different agreements to secure their respective financial interests:
    1. Cohabitation agreement either when commencing or during the de facto relationship; or a
    2. Separation agreement either during or after the end of the de facto relationship.
  • Since 1 March 2009, de facto partners can enter into financial agreements.
  • De facto partners now need to file a separation declaration if they wish to enforce a financial agreement made after 1 March 2009.
  • Under the new legislation, the Court can declare title or rights to property to a de facto partner or another party, but only if the relationship has broken down after 1 March 2009 or if both parties consent to the jurisdiction of the Family Court if their relationship broke down prior to 1 March 2009.
  • While a financial agreement is binding, procedural requirements must be adhered to otherwise the agreement can be set aside by the Courts
  • A de facto relationship can exist regardless of whether one of the partners is legally married to someone else.
  • Under the new legislation, the Courts treat superannuation as an asset of the relationship. A superannuation clause can be drafted into a financial agreement.
  • A financial agreement can include parties outside the de facto relationship.

If you have any questions regarding your rights under the new amendments relating to financial agreements, please contact our office and we will be happy to assist you.

James T Noble
Principal, James Noble Family Law