Deciding to move in with your partner is an exciting step, but it also brings practical considerations about finances and property. The good news is that yes, family lawyers on the Gold Coast and throughout Australia can draft cohabitation agreements to protect your interests. These legal professionals are well-equipped to create agreements that clarify financial arrangements and provide peace of mind for unmarried couples living together.
Table of Contents
Key Takeaways
What Is a Cohabitation Agreement?
Definition and Common Purposes
A cohabitation agreement is a private written contract between unmarried couples who live together. It outlines how assets, debts, and financial responsibilities will be handled during the relationship and if the relationship ends. These agreements typically cover property ownership, contribution to mortgage payments, division of household expenses, and what happens to jointly acquired assets if the relationship breaks down.
Difference from Other Agreements
Unlike Binding Financial Agreements (BFAs) under the Family Law Act, cohabitation agreements may not always have the same level of automatic enforceability. They’re distinct from parenting plans, which focus on child arrangements, and wills, which address asset distribution after death. Cohabitation agreements specifically target the financial aspects of a current relationship between unmarried partners.
When Couples Commonly Use Them
These agreements are particularly valuable before moving in together, when combining high-value assets, or when one or both partners have children from previous relationships. They’re also common for couples with significant income disparities or those wanting clarity about financial responsibilities from the start.
The Role of Family Lawyers in Drafting Cohabitation Agreements
Role and Qualifications
Family lawyers bring specialised knowledge of relationship property law to the drafting process. They ensure proper disclosure of assets, advise on legal formalities that increase enforceability, and craft language that clearly expresses both parties’ intentions. Their experience with family law, property settlements, and BFAs makes them well-positioned to create robust agreements.
“A properly drafted cohabitation agreement provides clarity and protection for both parties, potentially saving significant emotional and financial stress if the relationship ends.” – Advance Family Law
When Professional Help Is Recommended
While simple agreements might seem straightforward, professional legal assistance becomes essential when dealing with:
- Complex asset structures or high-value properties
- Business interests or investments
- Superannuation considerations
- Pre-existing assets from before the relationship
- Children from previous relationships
Alternatives to Using a Family Lawyer
Some couples consider alternatives like online templates or DIY agreements. However, these options often lack the legal rigour necessary for enforceability. Conveyancers may help with property aspects but typically can’t provide comprehensive advice on all elements of relationship law that might affect the agreement.
Legal Framework in Australia
Federal Family Law Act and De Facto Relationships
Under Australian law, de facto couples (including same-sex couples) who have lived together for at least two years can make property and financial claims similar to married couples under the Family Law Act. A properly drafted cohabitation agreement can help define how these provisions apply to your specific situation.
BFAs vs Cohabitation Agreements
Binding Financial Agreements have strict formal requirements, including independent legal advice certificates and specific execution formalities. While cohabitation agreements may not always have the same automatic legal standing as BFAs, following similar formalities can significantly strengthen their enforceability.
State and Territory Considerations
Property and relationship laws can vary between states and territories. A family lawyer familiar with local requirements in your state (NSW, VIC, QLD, SA, WA, TAS, ACT or NT) can ensure your agreement complies with relevant regional provisions.
Making Your Cohabitation Agreement Enforceable
Clear, Specific Drafting
Enforceable agreements contain precise descriptions of assets, liabilities, and each party’s rights. Vague language or ambiguous terms make agreements vulnerable to challenge. A family lawyer drafts with precision to avoid interpretation issues later.
Full Financial Disclosure
Both parties must provide complete information about their financial situations. Written schedules of assets and liabilities should be attached to the agreement. Withholding information can be grounds for later invalidation.
Independent Legal Advice
Each party should obtain separate legal advice before signing. This demonstrates that both parties understood the agreement and entered into it voluntarily. Certificates of independent legal advice strengthen the agreement’s standing if challenged.
Avoiding Common Pitfalls
Agreements may be set aside if created under duress, undue influence, fraud, or if one party lacked capacity to understand. Family lawyers help avoid these issues through proper process and documentation.
Creating Your Cohabitation Agreement: Step by Step
Initial Meeting and Scope
The process begins with discussing your objectives, which assets should be included, and any specific concerns. Being clear about your goals helps your lawyer draft an agreement that meets your needs.
Information and Disclosure
You’ll need to provide details about bank accounts, property, superannuation, businesses, debts, and potential inheritances. This comprehensive disclosure forms the foundation of an effective agreement.
Drafting and Review
Your lawyer prepares an initial draft, which both parties review. Negotiation may be necessary to reach terms acceptable to everyone involved. Multiple drafts are common before finalising the document.
Execution and Updates
Once both parties have received independent legal advice, the agreement is signed and witnessed according to proper formalities. The agreement should be reviewed after major life events like having children, marriage, or significant changes to assets.
Common Limitations to Be Aware Of
Parenting Arrangements
Cohabitation agreements cannot predetermine binding parenting arrangements. Courts always decide parenting matters based on the best interests of the child at the time of any dispute.
Superannuation Treatment
Special provisions apply to superannuation under family law. Your lawyer can advise on practical ways to address super in your agreement, acknowledging the limitations in this area.
Risks of Informal Agreements
Handshake deals or DIY agreements often fail when tested. Without proper legal structure, these informal arrangements may not hold up in court and can lead to unforeseen tax or stamp duty consequences.
Conclusion
A properly drafted cohabitation agreement provides valuable protection and clarity for unmarried couples. While DIY options exist, working with a qualified family lawyer ensures your agreement addresses all necessary elements and stands the best chance of being enforced if needed.
By following the proper process, including full disclosure, independent legal advice, and formal execution you can create an agreement that provides peace of mind as you build your life together. Advance Family Law can provide tailored advice specific to your circumstances and help draft an agreement that protects both parties’ interests now and in the future.
