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Defacto agreements under the Family Law Act 1975 (Cth)

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From 1 March 2009 (and 1 July 2009 in South Australia), the rules about binding de facto agreements (with the exception of Western Australia) are covered by the Family Law Act ("FLA"). There are three main types of defacto agreements under the FLA  - before, during and after the de facto relationship. A de facto agreement (known as a financial agreement under the FLA) can be made with respect to the following matters:

  • How in the event of a breakdown in the de facto relationship, all or any of the property or financial resources of either or both of the parties is to be dealt with
  • The maintenance of either party during the de facto relationship and after dissolution of the de facto relationship 
  • any other incidental or ancillary matters to those above. The FLA provides no definition or examples of these terms. An ancillary or incidental matter is one which has a sufficient connection with the subject of property division or spousal maintenance.  

There are three main issues involved with a de facto agreement:

  1. What is a financial agreement? 
  2. Is the agreement binding?
  3. When can a binding agreement be set aside?

The rules about de facto agreements are very similar to the rules governing pre-nuptial agreements - click here for these rules.

Geoff Wilson, of HopgoodGanim Lawyers, prepared a paper in March 2009 concerning the new de facto laws (including agreements) entitled: De Facto Property Claims - The Interrelation with Wills and Estates.  

For further information on de facto agreements, contact a legal representative from your state under the "draft a pre-nuptial" tab on this website.