De facto financial agreements are agreements between de facto partners who want to settle their finances amicably in the event of a relationship breakdown. De facto couples are couples who are not legally married but are living on a genuine domestic basis. They may still have children or family homes just like married couples. De facto financial agreements are:
- Prenuptial agreements – Agreements made before a relationship starts
- Postnuptial agreements – Agreements made during a relationship
- Binding financial agreements – These agreements are already legally binding due to a court order or a lawyer drafting the agreement. Also, parties can make these after a relationship has ended.
Australian law has given legal provisions for de facto couples similar to married couples. This includes parenting arrangements, property settlement, and even spousal maintenance. The Family Law Act (1975) now mentions de facto relationship agreements. In fact, according to Section 90UA of the Act, two or more people can make a de facto financial agreement.
However, the couple must be ordinarily residing in a participating jurisdiction when making the financial agreement. De facto couples who are bound by financial agreements need not go to court when they have financial agreements in place. Any de facto couple who want to secure their major, significant, and/or personal assets should consider de facto financial agreements.
Section 90UB: Financial Agreements Before De Facto Relationship
According to Section 90UB, the following factors constitute de facto financial agreements (prenuptial agreements):
- People who are contemplating entering a de facto relationship who make a written agreement with respect to their property, financial resources, or the maintenance of either party.
- The parties to the de facto relationship are not part of any other financial agreement
- The agreement is expressed to be made under this section
A financial agreement made with respect to the factors above may also contain matters incidental or ancillary to a de facto couple’s property, financial resources, or maintenance. The new financial agreement may also terminate a previous financial agreement. This is true if all of the parties to the previous agreement are parties to the new agreement.
Section 90UC: Financial Agreements During De Facto Relationship
According to section 90UC, the following factors constitute de facto financial agreements for couples who are already in a de facto relationship (postnuptial agreements):
- People who are in a de facto relationship who make a written agreement with respect to their property, financial resources, or the maintenance of either party.
- The parties to the de facto relationship are not part of any other financial agreement
- The agreement is expressed to be made under this section
Similar to Section 90UB, a financial agreement made with respect to the factors above may also contain matters incidental or ancillary to a de facto couple’s property, financial resources, or maintenance. Also, the new financial agreement may terminate a previous financial agreement. This is true if all of the parties to the previous agreement are parties to the new agreement.
Section 90UD: Financial Agreements After a Relationship Breakdown
Can de facto couples still enter into de facto financial agreements after a relationship breakdown? Yes. According to Section 90UD, the following factors constitute a financial agreement after a relationship breakdown:
- People who had/have a relationship breakdown who make a written agreement with respect to their property, financial resources, or the maintenance of either party.
- The parties to the de facto relationship are not part of any other financial agreement
- The agreement is expressed to be made under this section
The same provisions apply to Section 90UD about matters incidental or ancillary to a de facto couple’s property, financial resources, or maintenance. Additionally, the same provisions apply regarding the termination of a previous financial arrangement.
Section 90UE: Financial Agreement Made in Non-referring States
Section 90UE applies if:
- There are written de facto financial agreements that de facto couples sign with respect to the eligible agreed matters. (Note: The eligible agreed matters are the property, financial resources, and maintenance of either party).
- The parties made the agreement under a non-referring State de facto financial law
- Either court could not make an order under a law that is inconsistent with the financial agreement
- Either court could not make an order under a law with respect to the eligible agreed matters to which the agreement applies
- The couple’s circumstances changed so that sections 90SB, 90SD, and 90SK would not prevent courts from making an order or declaration in relation to the eligible agreed matters. This factor applies if the de facto relationship were to break down.
- The couple’s circumstances changed so that sections 90SB, 90SD, and 90SK would not prevent courts from making an order or declaration in relation to the eligible agreed matters.
- The financial agreement was in force under a non-referring state de facto financial law immediately before at a later time
- The couple were not married to each other immediately before at a later time
De Facto Financial Agreements: Additional Information About Section 90UE
This section extends to agreements made during or after a relationship breakdown or a when they are contemplating entering a de facto relationship. Certain agreements are de facto financial agreements under Part 2 of Schedule 1 of the Family Law Amendment Act 2008.
This is true if certain agreements are formed under a state law that is, or that becomes a participating jurisdiction or made under the law of a Territory. For the purposes of this Act, the agreement is assumed to be a de facto financial arrangement on and after the transition time to the extent that it deals with:
- The eligible agreed matters; and
- Matters incidental or ancillary to the eligible agreed matters.
Seeking Legal Advice About De Facto Financial Agreements
De facto couples should seek legal advice from a lawyer if they want to amicably separate their assets, finances, and property. Indeed, not all de facto couples end up walking away content with their share of their asset and property pool. Moreover, some couples will take legal matters to the court and this can be costly and lengthy.
Our lawyers at JB Solicitors can utilise mediation and arbitration methods to resolve simple to complex disputes regarding financial matters. JB Solicitors can ensure that all parties make the right legal decision regarding property, finances or maintenance.
We can also aid in drafting legally binding financial agreements for couples who want to secure their assets and finances.
Contact us today if you want to draft de facto financial agreements.
