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Cohabitation Agreement

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FINANCIAL AGREEMENT

THIS FINANCIAL AGREEMENT (the "Agreement") dated this ________ day of ________________, ________.

BETWEEN:

_____________________
of _________________________

- AND -

_____________________
of _________________________

BACKGROUND

  1. This Agreement is made between _____________________ and _____________________ (collectively the "Parties" and individually a "Party") who presently reside in a de facto relationship and presently reside together or intend to reside together in the future, although there is no present intention to marry.
  2. This Agreement is made under Section 90UC of the Family Law Act 1975.
  3. The Parties' non-marital cohabitation began or would begin on approximately the ________ day of ________________, ________.
  4. The Parties wish to enter into this Agreement to provide for the status, ownership, and division of property between them, including future property owned or to be acquired by either or both of them.
  5. The Parties further wish to affix their respective rights and liabilities that may result from this relationship.
  6. The Parties recognise the possibility of unhappy differences that may arise between them. Accordingly, the Parties desire that the distribution of any property that either or both of them may own will be governed by the terms of this Agreement and, insofar as the statutory or case law permits, intend that any statutes that may apply to them, either by virtue of Commonwealth or Territorial legislation, will not apply to them.
  7. Each Party has retained their own lawyer and has received independent legal advice regarding the terms of this Agreement.
  8. The Parties acknowledge that neither is under any duress or undue influence of the other, and that they are voluntarily entering into this Agreement.
  9. The Parties have disclosed to the satisfaction of each of them all assets and liabilities that each may have.

NOW THEREFORE in consideration of the upcoming financial agreement, and in consideration of the mutual promises and covenants contained in this Agreement, the Parties agree as follows:

  1. PROPERTY
  2. The Parties acknowledge that this Agreement will govern any determination of ownership of property that may occur in the event of the Parties separating, or upon the death of a Party.
  3. All jointly acquired or jointly held property, however and whenever acquired, will remain the property of and be owned by both Parties and will be treated as shared property (the "Shared Property").
  4. Except as otherwise provided in this Agreement, all property will be treated as property owned solely by either one of the Parties (the "Separate Property") except where:
    1. it is Shared Property; or
    2. there is proof of shared legal ownership.
  5. Nothing in this Agreement will prevent or invalidate any gift, or transfer for value, from one Party to the other of present or future property.
  6. Unless a Party can reasonably show that they solely own a piece of property, where either Party commingles jointly owned property with Separate Property, any commingled property will be presumed to be Shared Property.
  7. DEBTS
  8. The Parties acknowledge that this Agreement will govern any determination of responsibility of debts that may occur in the event of the Parties separating, or upon the death of a Party.
  9. All jointly acquired or jointly held debts, however and whenever acquired, will remain the debts of and be owed by both Parties and will be treated as shared debts (the "Shared Debts").
  10. Except as otherwise provided in this Agreement, all debts will be treated as debts owed solely by either one of the Parties (the "Separate Debts") except where:
    1. it is Shared Debt; or
    2. there is proof of shared legal responsibility.
  11. MAINTENANCE
  12. The Parties agree that the investment of time or labour with respect to personal service in the property of the other, or otherwise, will be deemed to have been made gratuitously, and without expectation or right of compensation unless agreed to the contrary in writing.
  13. It is the intention of the Parties to forever release each other from any maintenance obligations now and in the future no matter how their circumstances may change. They will not apply now or in the future under any legislation for maintenance. They each waive any rights they may have to proceed against the other under any law or statute for  maintenance and rely upon the law of contract to govern in respect of this issue.
  14. The Parties realise that their respective financial circumstances may be altered in the future by changes in their health, the cost of living, their employment, their marital status, the breakdown of their relationship, or otherwise. No such changes will give either Party the right to seek maintenance under any legislation. It is understood by each Party that this Agreement represents a final disposition of all maintenance issues between them.
  15. ESTATES AND TESTAMENTARY DISPOSITION
  16. Nothing in this Agreement will limit or affect any rights that each may acquire as a cohabitant or cohabitant in the property, assets or estate of the other cohabitant.
  17. Nothing in this Agreement will invalidate or prevent either Party from naming the other as a beneficiary by will or other testamentary disposition.
  18. SEVERABILITY
  19. Should any portion of this Agreement be held by a court of law to be invalid, unenforceable, or void, such holding will not have the effect of invalidating or voiding the remainder of this Agreement, and the Parties agree that the portion so held to be invalid, unenforceable, or void, will be deemed amended, reduced in scope, or otherwise stricken only to the extent required for purposes of validity and enforcement in the jurisdiction of such holding.
  20. INTENTION OF THE PARTIES
  21. Notwithstanding that the Parties acknowledge and agree that their circumstances at the execution of this Agreement may change for many reasons, including but without limiting the generality of the foregoing, the passage of years, it is nonetheless their intention to be bound strictly by the terms of this Agreement at all times.
  22. DUTY OF GOOD FAITH
  23. This Agreement creates a fiduciary relationship between the Parties in which each Party agrees to act with the utmost of good faith and fair dealing toward the other in all aspects of this Agreement.
  24. FURTHER DOCUMENTATION
  25. The Parties agree to provide and execute such further documentation as may be reasonably required to give full force and effect to each term of this Agreement.
  26. TITLE/HEADINGS
  27. The headings of this Agreement form no part of it, and will be deemed to have been inserted for convenience only.
  28. ENUREMENT
  29. This Agreement will be binding upon and will enure to the benefit of the Parties, their respective heirs, executors, administrators, and assigns.
  30. GOVERNING LAW
  31. The laws of the Commonwealth of Australia will govern the interpretation of this Agreement, and the status, ownership, and division of property between the Parties wherever either or both of them may from time to time reside.
  32. TERMINATION OR AMENDMENT
  33. This Agreement may only be terminated or amended by the Parties in writing signed by both of them.

IN WITNESS WHEREOF the Parties have hereunto set their hands and seals on the ________ day of ________________, ________.

SIGNED, SEALED AND DELIVERED
In the presence of:

_____________________________
Witness
Printed Name: _________________

_____________________________
Witness
Printed Name: _________________

________________________
_____________________



_____________________________
Witness
Printed Name: _________________

_____________________________
Witness
Printed Name: _________________

________________________
_____________________


CERTIFICATE OF INDEPENDENT LEGAL ADVICE

THE AUSTRALIAN CAPITAL TERRITORY

I, ________________________, of the City of ___________________, in the Australian Capital Territory, Solicitor, DO HEREBY CERTIFY:

THAT I was this day consulted in my professional capacity by _____________________, named in the within instrument, being a Financial Agreement, separate and apart from _____________________, as to _____________________'s legal rights and liabilities under the terms and conditions of the said Financial Agreement, and that I acted solely for _____________________. I explained fully to _____________________ the nature and effect of the said Financial Agreement on _____________________'s rights and the advantages and disadvantages to _____________________ of entering the said Financial Agreement. _____________________ did execute the said Financial Agreement in my presence, and did acknowledge and declare that _____________________ was executing it of _____________________'s own volition and without any fear, threats, compulsion or influence from _____________________, or any other person.

DATED at the City of ___________________, in the Australian Capital Territory this ____________ day of _________, 20___.

________________________
SOLICITOR
Print Name: _____________



I, _____________________, the person named in the annexed Financial Agreement, hereby acknowledge the foregoing this ____day of ______________20___.


________________________
_____________________


CERTIFICATE OF INDEPENDENT LEGAL ADVICE

THE AUSTRALIAN CAPITAL TERRITORY

I, ________________________, of the City of ___________________, in the Australian Capital Territory, Solicitor, DO HEREBY CERTIFY:

THAT I was this day consulted in my professional capacity by _____________________, named in the within instrument, being a Financial Agreement, separate and apart from _____________________, as to _____________________'s legal rights and liabilities under the terms and conditions of the said Financial Agreement, and that I acted solely for _____________________. I explained fully to _____________________ the nature and effect of the said Financial Agreement on _____________________'s rights and the advantages and disadvantages to _____________________ of entering the said Financial Agreement. _____________________ did execute the said Financial Agreement in my presence, and did acknowledge and declare that _____________________ was executing it of _____________________'s own volition and without any fear, threats, compulsion or influence from _____________________, or any other person.

DATED at the City of ___________________, in the Australian Capital Territory this ____________ day of _________, 20___.

________________________
SOLICITOR
Print Name: _________________



I, _____________________, the person named in the annexed Financial Agreement, hereby acknowledge the foregoing this ____day of ______________20___.


________________________
_____________________

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Last Updated February 27, 2024

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What is a Cohabitation Agreement?

A Cohabitation Agreement is a contract between an unmarried couple who is romantically involved and preparing to live together. It outlines the rights and responsibilities of each person and makes provisions about how to divide the couple’s assets in the event they separate in the future. The agreement can cover some or all their assets and debts.

You can use this Cohabitation Agreement if you and your partner are two adults who are:

  • In a de facto relationship
  • Not married to each other
  • Not related by family
  • Living together, or planning to live together

The Family Law Act (1975) governs the rights of cohabiting couples in Australia. For non-intimate couples, such as friends or siblings, who are planning on moving in together, a Flatmate Agreement can better define the responsibilities between the roommates.

A Cohabitation Agreement is also known as a:

  • Binding financial agreement (BFA)
  • Living together agreement
  • De facto partner agreement
  • Common law partner agreement
  • Non-marital agreement
  • Cohab

What is cohabitation?

Cohabitation is an arrangement between two romantically involved people, who live together while unmarried.

What is a de facto relationship?

A de facto relationship is one between a couple who live together on a genuine domestic basis. Circumstances that demonstrate a de facto relationship include:

  • Length of the relationship
  • Nature and extent of any common residence
  • Existence of a sexual relationship
  • Degree of financial dependence or interdependence
  • Arrangements for financial support
  • Ownership and use of property owned individually or together
  • Whether the relationship has been registered under State or Territory law
  • Degree of mutual commitment to a shared life
  • Care and support of any children
  • Reputation and public aspects of the relationship (e.g. attending events together)

It’s not essential for all of the circumstances above to be present for the couple to be in a de facto relationship.

What are the differences between cohabitation and marriage?

Although cohabitation and marriage have some similarities in that they both deal with topics like debt responsibilities, division of assets, support payments, and information regarding children, there are important distinctions between the two, such as:

  • A couple getting married needs to obtain a marriage license, wait a certain period of time, or hire an officiant. Cohabiting couples don’t require formal or legal steps to be taken.
  • Ending a marriage in Australia requires the formal process of filing for divorce. De facto couples who have registered their relationship also have to revoke that registration if the relationship ends. Ending a cohabiting relationship can be an informal process, depending on the terms and conditions of your Cohabitation Agreement.
  • If a spouse in a marriage dies without leaving a will, the surviving spouse will usually inherit part of the estate. Depending on the length of the relationship, the surviving partner in a cohabitation relationship may not have an automatic right to any inheritance if there isn't a will.

What does a Cohabitation Agreement do?

A Cohabitation Agreement protects both partners in a relationship and minimises conflict in the event of a breakup. The agreement can cover topics such as:

  • Separate assets: property or items one partner owns and retains all respective rights of ownership to after a breakup
  • Shared assets: property or items both parties own that are divided after a breakup in whichever way is outlined in their Cohabitation Agreement
  • Debt obligations: joint debts that both parties are responsible for in the event of a breakup (e.g., co-signed loans or real estate)
  • Maintenance payments: financial support that one party might give the other as outlined in the Cohabitation Agreement

Who should have a Cohabitation Agreement?

A Cohabitation Agreement is suitable for any couple who wants to remain unmarried while also having some of the rights of a married couple. They’re also useful for cohabiting couples who want to keep their individual debts separate from each other.

A Cohabitation Agreement also provides security if a partner passes away. It allows one partner to add to or restrict the other partner’s inheritance in combination with their Last Will and Testament.

How do I create a Cohabitation Agreement in Australia?

You can create a Cohabitation Agreement by completing LawDepot’s questionnaire. Using our template ensures you complete the following necessary steps.

1. State if you and your partner already live together

Start your Cohabitation Agreement by stating if you and your partner already live together. If you do, include the shared property’s address and when you moved in.

2. You and your partner provide your details

Include the names and genders of you and your partner and which state or territory you’ll be living in.

Areas within Australia may have differing cohabitation laws. Select your state or territory, and we’ll tailor your Cohabitation Agreement to meet the laws and regulations of your location.

You can use LawDepot’s Cohabitation Agreement templates in:

  • Australian Capital Territory
  • New South Wales
  • Northern Territory
  • Queensland
  • South Australia
  • Tasmania
  • Victoria
  • Western Australia

3. Outline how household expenses will be split

Outline how you and your partner will split household expenses. If you won’t be splitting the expenses evenly, specify how they will be divided between the two of you. It’s common for cohabiting couples to decide on a percentage of the expenses each partner will be responsible for, or to assign specific expenses to each of you.

Household expenses can include:

  • Mortgage or rent
  • Utilities
  • Phone
  • TV (i.e., cable or satellite)
  • Internet
  • Groceries
  • Property tax

If you’re using a joint bank account to pay your bills, also specify how much money each partner will contribute to the account per month.

4. Create a list of separate and shared assets/debts (if applicable)

If you and your partner have noteworthy assets or debts, attach a list or include them in your Cohabitation Agreement.

Separate assets or debts

Separate assets or debt are owned by only one partner in a cohabiting relationship. The owner retains control and responsibility of it in the event of a breakup. In other words, there will be no question as to who legally owns the asset or debt or whether the other party is entitled to it.

Shared assets or debts

Shared assets or debts are items, property, bank accounts, or loans you and your partner co-own or share responsibility for. In the event of a breakup, you can either divide the assets or debt between the two of you or one party can pay half of the value to the other party.

Shared assets can include real estate, vehicles, bank accounts or credit cards, furniture, or any other possessions you co-own with a partner.

It’s a good idea to specify how you’ll divide joint debt even if you currently don’t have any.

5. State if children are involved

Dependent children are biological or adopted children that the parents have a legal obligation to support. State if you and your spouse have any dependent children together or from a previous relationship.

Include the names and birthdays of all your dependent children in your Cohabitation Agreement.

6. Indicate if maintenance payments will be made in the event of a breakup

Maintenance is financial support from one spouse to the other in the event one of them can’t meet their own reasonable expenses after their de facto relationship has come to an end.

You and your partner can agree that one of you will pay maintenance to the other. If you can’t agree and apply to the court for maintenance, the party seeking financial support must demonstrate that they’re unable to adequately support themselves and their partner is reasonably able to support them.

They also have to either show they’ve been in a de facto relationship with their partner for at least two years, have a child together, or have registered their de facto relationship with their state or territory.

If maintenance payments are part of your Cohabitation Agreement, indicate if they’ll be for a specified amount or as determined by law.

7. Outline any restrictions on inheritance

Indicate if there are any restrictions on the inheritance one partner receives in the event the other partner passes away.

Parties can voluntarily give up their rights to inherit from the other’s estate. By doing so, they agree to not make a claim on the other’s estate upon death. Partners will often waive rights to inheritance if they want to ensure that someone, like a dependent child, is provided for when they pass away.

Waiving rights to inheritance as a surviving partner doesn’t mean that partners can't leave assets to each other in their wills.

8. Outline any additional clauses

Include any additional terms or conditions that your Cohabitation Agreement doesn't already cover. For example, you may want to clarify what happens to any co-owned pets.

9. Provide the signing details

State when the parties will sign the Cohabitation Agreement and how many witnesses will be present.

For a Cohabitation Agreement to be binding, both parties must:

  • Sign the Agreement (preferably in front of their lawyers)
  • Receive independent legal advice before signing
  • Attach a Certificate of Independent Legal Advice to the agreement
  • Provide the other party with a copy of their Certificate of Independent Legal Advice

If the Agreement isn’t signed in front of your lawyer, it’s advisable to have at least one person witness the signing of the Cohabitation Agreement.

Does a Cohabitation Agreement need to be notarized?

A notary public doesn’t need to witness the signing of a Cohabitation Agreement to be legally binding. However, having witnesses (preferably lawyers) present for the signing is highly recommended. Witnesses help ensure the agreement’s validity in the event the couple breaks up and the matter goes to court.

Do Cohabitation Agreements hold up in court?

Cohabitation Agreements are legally binding documents that a court will recognize as long as the cohabiting couple follows the proper procedures. For example, it’s a legal requirement that both parties receive independent legal advice before signing the agreement.

How do I end a Cohabitation Agreement?

To end a Cohabitation Agreement, you and your partner simply need to divide your assets and debt as specified by your agreement and go your separate ways. It’s not necessary to apply to the Federal Circuit Court of Australia, fill out any forms, or receive a separation certificate.

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