Living together outside of marriage has become a common practice in Australia, and many couples choose to cohabit rather than get married. However, unlike married couples, cohabiting partners don’t have the same legal rights and protections, especially in the event of a breakup. To safeguard their interests, cohabiting couples can enter into a cohabitation agreement. In this article, we’ll explore what a cohabitation agreement is, what it covers, and why it’s important for unmarried couples in Australia.
A cohabitation agreement, also known as a living together agreement or a domestic partnership agreement, is a legal document that outlines the rights and responsibilities of cohabiting partners in the event of a separation. It’s essentially a contract between unmarried couples that governs how they’ll divide their assets and liabilities, including property, finances, and personal belongings.
A cohabitation agreement can be entered into by any couple who are living together or intend to live together in the future. It’s particularly useful for couples who have assets or financial obligations they wish to protect, or who have children from previous relationships.
Cohabiting couples in Australia aren’t recognised under the law as being in a de facto relationship until they have lived together for at least two years or have a child together.
This means that if the relationship ends before the two-year mark, each partner may have no legal rights to the other’s property or assets.
A cohabitation agreement can help to protect each partner’s assets and ensure that each partner receives a fair share of the assets they have accumulated during the relationship. It can also specify how the partners will share expenses and debts during the relationship, and how they will handle joint bank accounts and credit cards.
A cohabitation agreement can cover a variety of issues, such as the division of assets and liabilities in the event of a separation, ongoing financial support such as spousal maintenance, ownership and management of property, payment of joint expenses, and division of household chores and responsibilities. The agreement can also include provisions regarding the care and custody of children, including child support arrangements.
Couples can customise their cohabitation agreement according to their unique circumstances and preferences. For example, they can specify how their property and assets should be divided if they separate, how much financial support one partner should provide the other, and who should be responsible for paying for different household expenses. They can also include provisions regarding the division of chores, such as who will be responsible for cooking, cleaning, and doing laundry.
It’s important to note that a cohabitation agreement cannot override the law, and any provisions that are contrary to the law will be unenforceable. Couples must also ensure that the agreement meets all legal requirements to be legally binding. Therefore, it’s recommended to seek legal advice from trusted lawyers to ensure that the agreement is valid and enforceable.
To draft a cohabitation agreement, couples should consider the following steps:
Once you have drafted a cohabitation agreement, it’s important to seek legal advice to ensure that the agreement is legally binding and enforceable. A family lawyer can help you understand your legal rights and obligations, and ensure that the agreement meets all legal requirements.
To be legally binding, a cohabitation agreement must meet the following requirements:
Firstly, it must be in writing and signed by both parties. It’s essential to ensure that both parties are aware of and agree to the terms of the agreement.
Secondly, each party must receive independent legal advice before signing the agreement. It means that each partner should seek their lawyer who can explain the implications of the agreement, and ensure that it protects their interests.
Thirdly, each party must sign the agreement voluntarily and without coercion. Any form of pressure or influence over the other party to sign the agreement can make the agreement unenforceable.
Lastly, the agreement must be fair and reasonable at the time it’s made. This means that the agreement should be based on the current financial and personal circumstances of each partner, and should not be made with the intent of one party gaining an unfair advantage over the other.
Although cohabitation agreements can be an effective way for unmarried couples to protect their assets and interests, there are some limitations to these agreements. For example:
It’s essential to note that cohabitation agreements cannot override the law. Any provisions that are contrary to the law will not be enforceable. It’s important to work with a lawyer to ensure that your agreement complies with the relevant laws and regulations.
Additionally, cohabitation agreements may not be enforceable if they are deemed unfair or unreasonable at the time they are made. That’s why it’s important to ensure that the agreement is fair and reasonable at the time it’s created. It’s essential to have an open and honest conversation with your partner about your expectations and goals for the agreement.
It’s also important to remember that circumstances can change over time, and a cohabitation agreement may not be enough to address these changes. For example, if you have a child together or one partner experiences a significant change in their financial circumstances, the terms of the agreement may no longer be appropriate. It’s important to regularly review your agreement and make any necessary updates to ensure it continues to meet your needs.
If you’re in a de facto relationship or marriage in Australia, you can enter into a binding financial agreement (BFA) to determine how your assets will be divided in case of a separation. BFAs are similar to cohabitation agreements, but they can be more comprehensive in scope.
BFAs can cover a range of financial matters, including property settlement, spousal maintenance, and superannuation. However, unlike cohabitation agreements, BFAs must comply with strict legal requirements to be legally binding. The requirements for BFAs include that each party receives independent legal advice, the agreement is in writing and signed by both parties, and the agreement isn’t entered into under duress.
It’s essential to note that a BFA is a legally binding document and can have significant long-term consequences. Therefore, it’s vital to seek legal advice before entering into a BFA to ensure that your interests are well protected no matter what happens. Additionally, circumstances can change over time, and a BFA may no longer be appropriate or enforceable which may pose a risk for you. A family lawyer can help you determine whether a BFA is a right option for you and guide you through the process.
If you and your partner are considering entering into a cohabitation agreement, it’s important to seek legal advice before signing the agreement. Both parties should seek independent legal advice from a qualified family lawyer to ensure that their interests are protected and that the agreement is fair and reasonable.
A family lawyer can review the agreement and provide advice on its content and implications. We can also identify any potential issues or legal pitfalls that you may not have considered. Additionally, we can also help to draft the agreement so that it meets all legal requirements and is enforceable in court.
Keep in mind that a cohabitation agreement can have significant implications for both parties in the event of a separation. It’s essential that both parties understand the terms of the agreement and the consequences of signing it. Seeking legal advice can provide you peace of mind and help to ensure that the agreement meets your needs and protects your interests.
If a cohabiting couple does not have a cohabitation agreement, they may have limited legal rights and protections in the event of a separation.
Without a cohabitation agreement, each partner may only be entitled to their own assets and may not be entitled to any of the other partner’s assets. This could potentially leave one partner at a significant disadvantage.
A cohabitation agreement can provide clarity and certainty for both partners, and can help to avoid disputes and legal battles in the future. The agreement can cover a range of matters, including property division, financial support, and arrangements for any children of the relationship.
In the absence of a cohabitation agreement, the couple would have to rely on the laws of their state or territory to determine how assets are divided. These laws may not necessarily reflect the couple’s wishes or interests, and could result in an outcome that is unfair or unsatisfactory for one or both parties.
Each partner may only be entitled to their own assets, and may not be entitled to any of the other partner’s assets.
a cohabitation agreement can provide legal protection for both of you, regardless of your sexual orientation or gender identity.
If you are in a de facto relationship, it’s important to note that you are entitled to the same legal rights and protections as married couples under Australian law. However, without a cohabitation agreement, you may not have the clarity and certainty you need in the event of a separation.
By having a cohabitation agreement in place, you can address a range of important issues, including property ownership, financial matters, and other arrangements that are relevant to your particular situation. This can help to prevent disputes and misunderstandings, and can provide a clear framework for how to move forward in the event of a separation or other change in circumstances.
For same-sex couples, a cohabitation agreement is equally important as it helps to protect your assets and interests, particularly in situations where the relationship has broken down or one partner has passed away. A cohabitation agreement can provide peace of mind and legal clarity, regardless of whether you are in a de facto relationship or not.
Additionally, if you have children together, a cohabitation agreement can be particularly useful. By outlining arrangements for custody, support and visitation rights, you can ensure that the best interests of the children are taken into account. This can provide stability and security for the children during a difficult time of uncertainty and emotions.
If you are an unmarried couple, this legally binding document can provide a solid foundation for the division of assets and liabilities in the event of a separation. It can also ensure that both partners have a clear understanding of their rights and responsibilities, which can prevent misunderstandings and disputes.
It’s important to note that while a cohabitation agreement can provide a framework for the division of assets and liabilities, it cannot override the law. Therefore, it’s essential to seek legal advice before entering into a cohabitation agreement to ensure that it’s fair, reasonable, and legally binding.
In addition to providing legal clarity and peace of mind, a cohabitation agreement can also help to avoid costly and acrimonious legal disputes further down the line. Without a clear agreement in place, disputes can arise over ownership of property, debts, and other financial matters. These disputes can be time-consuming, emotionally draining, and expensive to resolve.
By having a cohabitation agreement in place, you can protect your interests and avoid unnecessary legal battles. It’s important to remember that a cohabitation agreement is not just for those in a de facto relationship or same-sex couples. It can benefit any unmarried couple who wants to protect their assets and clarify their rights and responsibilities. So, if you are considering moving in with your partner, it’s worth discussing a cohabitation agreement with a family lawyer.
In Australia, a couple is considered to be in a de facto relationship if they have lived together for at least two years, or have a child together
Yes, a cohabitation agreement can be changed or updated if both parties agree. It’s important to ensure that any changes or updates are in writing and signed by both parties.
What happens if one party breaches the terms of the cohabitation agreement?
If one party breaches the terms of the cohabitation agreement, the other party may be able to seek legal remedies, such as a court order to enforce the agreement.
While a cohabitation agreement is primarily used to address financial matters, it can also include provisions relating to parenting arrangements and other matters. However, any provisions relating to parenting arrangements must be in the best interests of the child.
Yes, a cohabitation agreement can be entered into at any time during a relationship, as long as both parties agree and meet the legal requirements for the agreement to be legally binding.
In conclusion, a cohabitation agreement is a valuable legal tool that can help unmarried couples protect their assets and interests in the event of a separation. It’s important to seek independent legal advice and ensure that the agreement meets all legal requirements to be legally binding. By doing so, both partners can have greater peace of mind and avoid costly legal disputes in the future.