Creating A Financial Property Settlement Agreement When A De Facto Relationship Has Broken Down.

How to do Property Settlement When A De Facto Relationship Has Broken Down.

Before the right to create Financial Agreements (FAs) was extended to same-sex and de facto relationships, when such a relationship had broken down, both parties would have had to prepare themselves for some long-winded and tedious litigation through the Supreme Court. Thank goodness, this has now all been changed with the introduction of section 90UD of the Family Law Act 1975 which specifically entitles people in de facto relationships to agree upon what they consider to be a fair distribution of property and financial resources once the relationship has broken down.

Effectively, this now places de facto agreements in the same category as is already enjoyed by married couples. It means that same-sex relationships are apportioned with similar rights to heterosexual couples and this will be viewed as a welcome move by many gay rights groups that have been concerned and campaigning over these issues.

How Would You Go About Creating A FA In These Circumstances?

If a de facto, or same-sex relationship has broken down irretrievably, s.90UD of the 1975 Act sets out that the following procedures would need to be followed in order for a court to recognise and apply a financial agreement. These are as follows:

They would need to ensure that both parties seek professional and qualified legal advice. This is imperative and it should help to ensure that each party’s unique situation is evaluated and legally commented upon. If gross unfairness can be identified within the agreement as it stands, the legal advisor will point this out to the relevant partner and they will then only go ahead and sign once they know exactly what they are agreeing to and/or possibly compromising.

A certificate must be obtained from the applicable legal professional which will attest to the fact that this requirement has been satisfied. It would then need to be added as an ‘annex’ to the main written legal document which will make up the FA.

The FA will need to specify the extent of any relevant spousal maintenance to be provided. It will need to be signed by both people and a copy will be retained by each.

Provided all of the steps have been taken above, the court should not scrutinise the FA to ensure that it is just and equitable. The court would only tend to set a FA aside if there were fundamental flaws with the documents (e.g. the FA had been created in a fraudulent manner).

It is also important to note that a person can only enter into a FA if they are not already party to such an agreement with another person.

Swifter Resolution At The End Of A Relationship

This type of post nuptial agreement should help to ensure that any financial matters are dealt with far more smoothly than they may otherwise be. Granted, some time would be required on both sides to conceive the financial agreement, but once a settlement is agreed upon, the FA will provide a far quicker resolution to the question of who gets what.

Of course, to a large extent, at the end of any relationship and at a time when communication between both parties may not be as amicable as it once was, a lot will depend on how quickly an agreement can be settled. Nevertheless, it would probably end up being more prudent and cost effective for the parties to resolve the property and financial implications in this way.

Whatever actions the members of a de facto relationship elect to take when things have broken down, the fact remains that Australian law now provides them with these choices. Gone are the days where there was only very limited avenues that could be pursued in order to resolve such issues. Such de facto agreements now exist to realise a swifter resolution to the distribution of property and financial resources.

Our Financial Agreement Review Service is available as an option with this agreement.

Separation Financial agreement kits are available for immediate download only $129.95

State by State Financial Agreements for every relationship

Below is a State by State list of all the available (prenup, postnup, defacto, cohabitation, separation, divorce) financial agreements.

NSW FINANCIAL AGREEMENT KITS Available for immediate download 90UB Pre De facto financial agreement kit a relationship before Cohabitation 90UC De facto financial agreement kit for defacto partners who already Live Together 90B Prenup / prenuptial financial agreement kit for a couple Getting Married 90C Post nuptial financial agreement kit those married Staying Together 90C Separation financial agreement kit for married and Separating 90UD Separation financial agreement kit for De Facto partners after a relationship ends 90D Financial agreement for a Divorce

QUEENSLAND FINANCIAL AGREEMENT KITS Available for immediate download 90UB Pre De facto / pre cohabitation kit for a relationship before Cohabitation 90UC De facto / cohabitation kit for defacto partners who already Live Together 90B Prenup / prenuptial kit for a couple Getting Married 90C postnup / Post nuptial kit for those married Staying Together 90C Separation financial agreement kit for married and Separating 90UD Separation financial agreement kit for De Facto partners after a relationship ends 90D Financial agreement for a Divorce

ACT FINANCIAL AGREEMENT KITS Available for immediate download 90UB Pre De facto / pre cohabitation kit for a relationship before Cohabitation 90UC De facto / cohabitation kit for de facto partners who already Live Together 90B Prenup / prenuptial kit for a couple Getting Married 90C postnup / Post nuptial kit for those married and Staying Together 90C Separation financial agreement kit for married partners Separating 90UD Separation financial agreement kit for De Facto separation after a relationship ends 90D Financial agreement for a Divorce

NORTHERN TERRITORY FINANCIAL AGREEMENT KITS Available for immediate download 90UB Pre De facto/ pre cohabitation kit for a relationship before Cohabitation 90UC De facto/ cohabitation kit for defacto partners who already Live Together 90B Prenup / Prenuptial kit for a couple Getting Married 90C Postnup/ Post nuptial kit for those married and Staying Together 90C Separation financial agreement kit for married partners Separating 90UD Separation financial agreement kit for De Facto partners after a relationship ends 90D Financial agreement for a Divorce

TASMANIA FINANCIAL AGREEMENT KITS Available for immediate download 90UB Pre De facto / pre cohabitation kit for a relationship before Cohabitation 90UC De facto / cohabitation kit for defacto partners who already Live Together 90B Prenup / prenuptial kit for a couple Getting Married 90C postnup / Post nuptial kit for those married and Staying Together 90C Separation financial agreement kit for married partners Separating 90UD Separation financial agreement kit for De Facto partners after a relationship ends 90D Financial agreement for a Divorce

SOUTH AUSTRALIA FINANCIAL AGREEMENT KITS Available for immediate download Domestic Relationship Agreement for hetero partners only before or during Cohabitation made under section 5 Domestic Partners Property Act 1996 - not suitable for Same – sex relationship 90B Prenup / prenuptial kit for a couple Getting Married 90C postnup / Post nuptial kit for those married Staying Together 90C Separation financial agreement kit for married and Separating 90UD Separation financial agreement kit for De Facto Separation after a relationship ends 90D Financial agreement for a Divorce

VICTORIA FINANCIAL AGREEMENT KITS Available for immediate download 90UB Pre De facto / pre cohabitation kit for a relationship before Cohabitation 90UC De facto / cohabitation kit for defacto partners who already Live Together 90B Prenup / pre nuptial kit for a couple Getting Married 90C postnup / Post nuptial kit for those married Staying Together 90C Separation financial agreement kit for married and Separating 90UD Separation financial agreement kit for De Facto partners after a relationship ends 90D Financial agreement for a Divorce

WESTERN AUSTRALIA FINANCIAL AGREEMENT KITS Available for immediate download Pre De facto / pre cohabitation kit for a relationship before Cohabitation made under s 205ZN the Family Court Act 1997 De facto / cohabitation kit for defacto partners who already Live Together made under s205ZO the Family Court Act 90B Prenup / pre nuptial financial agreement kit for a couple Getting Married 90C postnup / Post nuptial financial agreement kit for those married Staying Together 90C Separation financial agreement kit for married and Separating De facto separation financial agreement kit after a relationship ends made under S205ZP the Family Court Act 90D Financial agreement for a Divorce

Financial Agreements

Agreement Review Service

Section 90G of the Family Law Act requires that each party to the agreement to receive independent legal advice as to the advantages and disadvantages of entering into the Agreement.

Before your financial agreement becomes legally binding it must contain

1. A statement in the body of the agreement by the parties to the effect that they have received legal advice independent of each other and

2. A certificate from the legal adviser that the advice has been provided.

This prevents either party from arguing that, when signing the agreement, they did not understand what they were signing or the consequences thereof.

We have negotiated a reduced rate for our customers with several independent nationally licensed lawyers who can provide the required advice by telephone and e-mail.

What does this mean for you?

Our Agreement review service assists you to complete your financial agreement properly, meeting the requirements of the Act, with a minimum of fuss and expense.

Of course you are also free to seek your own legal advice with a solicitor of your choice.

The steps involved are fairly simple.

1. Purchase and download the financial agreement kit.

2. Draft your own agreement, referencing the manual and sample agreements supplied.

3. When both parties are happy that the agreement achieves their aims, e-mail your draft to our agreement review service

4. The first party will be contacted by e-mail and telephone to set up a convenient time to examine your agreement, make any adjustments necessary and ensure the document is compliant with the requirements of the Act.

5. The completed draft will be sent to a second independent solicitor who reviews the agreement and makes contact with the second party.

6. When all parties are happy the certificates of legal advice are issued by each solicitor and e-mailed to the clients. Originals will be sent by regular mail.

7. Clients are then free to sign the agreement in front of a witness with each party keeping an original copy.

Collaborating with your spouse to reach and draft your own agreement is a fresh approach to resolving issues that may arise when a relationship ends. Reaching agreement in a non-combative atmosphere minimises costs, empowers the parties and reduces stress.

Our Lawyers understand that both parties have spent considerable time negotiating a mutually acceptable agreement and they simply need the added security and guidance of good legal advice.

The basic financial agreement review service starts from just $330 per partner. If your situation is particularly complicated additional costs may be involved.

Should you require more information please feel free to contact us via this contact form.

It’s not “just living together” anymore…

It's not "just living together" anymore…

It used to be that a couple could decide to just live together for awhile without having to worry too much about what would happen to their stuff when the relationship ended. You could just divide it all up at the end and go on your merry way.

Not any more.

Recent changes to Australian legislation have switched the regulation of relationships from the individual states to the Commonwealth. This means that defacto relationships, both hetero and same sex now rest under the protective umbrella of the Family Court of Australia.

The Family Court views personal relationship differently. It -
" rates non-financial home making contributions more highly than the states,
" has broader powers to make property orders or issue injunctions against third parties, including creditors and family companies which are in the legal control of one partner but not the other
" has policies and "toolboxes" that include a broad study of future needs as well as past considerations in making property adjustments

This means that de facto couples who satisfy basic criteria - such as being in the relationship for at least two years - will be treated in the Family Court in the same way as a married couple following the rule "what's yours is mine and what's mine is yours".

If you end a de facto relationship that has gone on for longer than 2 years, either partner has the legal right to lay claim to any of the assets of the other partner just as if you were married.

You can protect your assets by using a Binding Financial Agreement (BFA). The term Binding Financial Agreement or BFA is given to an agreement made between two people living together whether they intend to marry or not, are married or not, or plan to separate or divorce. That is, a BFA can be made during a relationship or after it has broken down.

Binding Financial Agreements allow you to enter into agreements about how you will distribute your property or financial resources or maintain each other in the event that your relationship breaks down. It will generally bind the Court and keep the matters in the agreement and out of litigation.

A BFA is not just an exclusive financial risk-management tool for Hollywood celebrities. Increasing numbers of less famous couples are opting for written agreements to protect the financial assets each partner brings to the relationship. They see it as a form of insurance -- a legally binding safety net that they hope they will never need.

Go HERE for more information

Binding Financial Agreements, Prenups, Postnups and Separation

Financial agreements can now be made between same-sex couples. Discussing a binding financial agreement, as it is known under the Family Law Act, is hardly the most romantic thing to do with your partner, but for many people, it may be the most important document ever signed.

No longer an exclusive financial risk-management tool for Hollywood celebrities, increasing numbers of less famous couples are known to be opting for written agreements to protect the financial assets each partner brings to the relationship.

It's the same type of agreement that is increasingly likely to be drawn up after a relationship has ended, as a preferred way of dividing up assets outside the public eye of the courts.

The popularity of binding financial agreements (BFAs) shows women and men are taking more financial and legal precautions against a relationship breakdown. Most see it as a form of insurance -- a legally binding safety net which they hope to never need.

They're no more complicated than wills. Now that the laws have changed, they should particularly be examined by those involved in more than one relationship and long-term de facto couples, who want to protect their property. In the absence of a BFA, one or other party can apply to the Family Court for an order relatively quickly and easily, without the difficulty that previously existed in the State courts.

BFAs deal with property settlement and spousal maintenance following a separation. They can also deal with "incidental and ancillary matters". They can't, however, deal to any great degree with child support or children's matters... even though the recent insertion of section 60H into the Family Law Act now recognises that a lesbian couple can co-parent.

If you're thinking of co-parenting, they're a good idea. Co-parenting takes place in cases where a child is born as a result of artificial conception procedures. The legislation came into effect on 1 March 2009 and now allows that where a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was or a de facto partner of, another person, male or female, where the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure, then the child is the child of the woman and of the other intended parent as a matter of law, and not the legal child of the person who provided the genetic material.

To be binding, BFAs must be signed by both parties. They must attach certificates by independent lawyers for each party confirming that the party has received advice by the lawyer prior to the party signing the agreement.

BFAs continue to be enforceable after the death of a party, unless otherwise specified (which is important if there is a provision for ongoing maintenance of one or the other of you... and particularly for lesbians if only one of you wants to actually give birth to the kids you both parent).

It is not possible to vary an existing BFA. You must make a new one and obtain new certificates of advice from solicitors.

There are a number of circumstances in which a court may set aside a financial agreement, particularly if it was obtained by fraud, including non-disclosure of a material matter, or you're trying to avoid creditors or proceeds-of-crime actions. If circumstances have arisen since the agreement that make it impracticable (example, it deals with a house which has now burnt down); or if, since the making of an agreement, a material change in circumstances has occurred relating to a party or child and the party or child will suffer hardship unless the Court sets aside the agreement, the BFA can also be set aside.

BFAs are apparently a way of life in places such as California, where courting couples insert life-style clauses dealing with who is to take out the garbage and how the toothpaste tube is to be squeezed. More practically, they're a useful option when there is a desire to preserve a family farm or family business in the event of the breakdown of a relationship It will also be useful where a party has received or is due to receive a large inheritance, gift, redundancy or compensation from Workcover or the Motor Accident Board.

BFAs don't need to be filed in Court until you need them if your relationship breaks down, in exactly the same way as nothing happens to your will until you die. A certificate of advice by a solicitor is now required, for each person in the relationship and from a different solicitor... however, BFA kits are available on line with optional legal advice which keeps them within the budgets of most people who have property to protect.