Family Law Act
Family Law - Cohabitation Agreement Pursuant To Section 285 Of The Property Law Act 1958 (vic.)
By Michael Pickering - LAC Lawyers
Partners and spouses will be aware of the 3 types of financial agreements under the Family Law Act (Cth.). These financial agreements are as follows:
- Pre-Nuptial Agreements (Section 90B)
- Post-Nuptial Agreements (Section 90C)
- Post-Divorce Agreements (Section 90D)
Post-Nuptial Agreements are commonly used to formalize property settlements after a breakdown of marriage, as an alternative to Family Court consent orders and to make a binding provision in relation to spousal maintenance.
Post-Divorce Agreements, on the other hand, are not as common. This is an agreement made after the parties have divorced. Such agreements deal with property acquired up until the time of divorce.
Whilst Victoria, along with other State Parliaments, save for Western Australia, have agreed to refer their powers over defacto and same-sex property matters to the Federal Government, Victorian courts still exercise power over cohabitation agreements entered into between two partners who intend to live together. This power is exercised in Victoria under Section 285 of the Property Law Act 1958 (Vic.). This section gives Victorian courts the authority to adjust the interest of domestic partners in property which either or both may own in terms that appear just and equitable having regard to a number of factors such as:
- Financial and non-financial contributions made directly or indirectly by the domestic partners to acquiring or improving any property; and
- Contributions made by either of the domestic partners as to the welfare of the other domestic partner or to the welfare of the family including any children.
Increasingly, partners considering cohabitation (as opposed to formal marriage), and either have no children from previous relationships or who do not wish to have any children from the current relationship, are entering into cohabitation agreements pursuant to the Victorian Property Law Act 1958.
The primary purpose of such a cohabitation agreement is to protect the assets of each party in the future. The agreement provides that should the relationship end, each party will leave the relationship with those assets which he or she brought into the relationship. Only jointly acquired assets fall into the asset pool for distribution by Victorian courts pursuant to the powers provided by Section 285.
Cohabitation agreements under the Property Law Act 1958 are often sought by partners to relationships who own substantial assets and who wish to preserve those assets if the relationship ends unexpectedly quickly.
These cohabitation agreements are not as formal as their counterparts under the Family Law Act. The State cohabitation agreements, however, can be just as influential. They should be treated by the domestic partners (and by their respective legal advisors) as serious documents.
State courts are more likely to uphold cohabitation agreements pursuant to statutes like the Property Law Act 1958 than are either the Family Court or the Federal Magistrates' Court when requested to uphold the three types of financial agreement possible under the Family Law Act. This is primarily due to the fact that financial agreements under the Family Law Act will often need to make provision for spousal maintenance in the context of a marriage which may have lasted for many years and also make financial provision for the education, welfare and support of children under the age of 18.
Clients should be advised, however, that agreements under Section 285 of the Property Law Act are not definitive. Such cohabitation agreements will not necessarily finally determine the distribution of assets in the event of a relationship breakdown. However, the cohabitation agreements may be taken into account by Victorian courts in their determination of what is a just and equitable resolution of the distribution of property when the domestic relationship has ended.
Clients should be advised that the longer a domestic relationship lasts, the less likely it will be that Victorian courts will enforce a cohabitation agreement which was drafted, for instance, many years previously when the domestic relationship was only just commencing in circumstances where one partner has been the effective homemaker, or where, contrary to initial plans, the partners did decide to have children. In those circumstances, clients would be best advised to enter into a pre-nuptial agreement under Section 90B of the Family Law Act or, at the very least, enter into an updated cohabitation agreement under Section 285 of the Property Law Act 1958 (Vic.).
Clients must also understand that any type of pre-nuptial agreement (whether under the Family Law Act or the Property Law Act) are subject to the normal contractual rules of enforceability. In other words, if the agreements have been entered into by virtue of duress, undue influence, fraud, or mistake, no court will enforce the agreement and property will be divided in accordance with relevant legislation.
Clients should also be aware that financial agreements under the Family Law Act and cohabitation agreements under the Property Law Act should be accompanied by effective estate planning. At a minimum, clients are best advised to effect wills when entering into pre-nuptial agreements to ensure that their individual property is divided in accordance with their specific wishes rather than in accordance with the statutory formula set out in the Administration and Probate Act 1958 (Vic.).
January 6, 2011
8:09 pm
what do you think of the Australian family law act (including the marriage act)?
hello, i have an assignment in legal studies and I was just wondering what everyone thought about the family law act (including the marriage act). What are its strengths, weaknesses and what do you think it should do to improve?
thank you so much!!
January 7, 2011
9:54 am
The Australian Family Law Act is applied differently in each state of Australia. This is one of the problems with it. It is not just a case of how it is written it is a case of how it is applied – especially when it comes to custody of children after the parents separate.
In a recent case a lady was forced to remain in a remote outback Queensland town with her small child who she had custody of so that her ex – husband could have access visits. She wanted to take the daughter and return to Sydney and follow a professional career of her own and could not because of access visits.
Other sources are
Aussielegal
http://www.aussielegal.com.au/forum/forum_posts~TID~6471.htm
Wikipedia
http://en.wikipedia.org/wiki/Family_Law_Act_1975
Weblaw
http://www.weblaw.edu.au/display_page.phtml?WebLaw_Page=Family+Law
Austlii
http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/
Family Court and Acts Affecting Family Law
http://www.familycourt.gov.au/wps/wcm/connect/FCOA/home/judgments/legislation/
Shared Parenting Laws
http://www.ag.gov.au/www/agd/agd.nsf/Page/Families_Familylawsystem
National and International Legislation re Child Support and Families
http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Legislation/Links+to+legislation/
I hope that this information is of help to you with your assignment. This is a vast area of endeavour. You can make a profession out of specialising in the Act of Parliament listed on Austlii – the Family Law Act that you are being asked to investigate. It is not merely a case of divorce. The amount of time and legal expense invested in custody and visitation cases is enormous.
Good Luck!!!
January 20, 2011
12:18 pm
Part VIII of the Act is concerned with the distribution of property after a marriage breakdown, and the Court has broad power under section 79 to order property settlement between parties based on a number of factors regarding ‘contribution’ and ‘future needs’.
Until 1 March 2009 a property dispute had to arise out of a matrimonial relationship. After many years the Federal government accepted powers referred to it by the States to include all de-facto couples (including same sex couples) under the Family Law Act. The changes passed by the Labor government came into effect in March 2009. Prior to this de facto and homosexual couples did not have the same property rights as married couples under the Act, and so had to rely on their state’s de facto relationship legislation. Such claims were often much harder to prove than under the Family Law Act, and did not include all the same considerations as under the Family Law Act,and could result in a more uneven or diminished distribution of property than would otherwise be possible.
It is necessary to bring a property claim before or within 12 months of the divorce occurring or two years of separation for de-facto couples, although unlike property proceedings in various other countries, the two usually occur separately.
A standard section 79 property adjustment has 4 steps:
1. Identify the marital assets and ascribe a value to them
The assets which may be distributed under the Act include the totality of the parties’ joint and several assets. The amount of property is determined at the date of hearing rather than at the date of divorce, so this can also include property acquired after separation. Superannuation is also considered to be a marital asset under section 90MC, but will not be available for distribution until it ‘vests’.
2. Look at each party’s contributions to the marriage under section 79(4)
This section of the Act contains a list of factors by which the Court can determine who contributed what to the marriage. Broadly, the contributions can be taken as financial in nature (for example, paying off a mortgage) or non-financial in nature (for example, taking care of the children). The party who can demonstrate a larger contribution to the marital relationship will receive a larger proportion of the assets.
3. Look at each party’s financial resources and future needs under section 75(2) and adjust accordingly
4 The court then considers whether the proposed distribution is just and equitable
After the parties’ contributions have been established, a final adjustment is made according to their individual future needs. These needs can include factors such as an inability to gain employment, the continued care of a child under 18 years of age, and medical expenses. This is often used to account for a party who has not shown a great deal of substantive contributions, but will require money to live on as a result of factors largely outside of their control.
January 21, 2011
4:58 am
The Australian Family Law Act 1975, sometimes referred to as the FLA by legal practitioners, is an Act of the Australian Parliament. It is one of four separate Acts that provide the framework for family law in Australia. It has 15 parts and is the main Australian legislation dealing with divorce, parenting arrangements between separated parents (whether married or not), property separation following a divorce, and financial maintenance involving children or divorced spouses.
January 21, 2011
11:59 am
No…children were at risk before the act and remain at risk after.
January 21, 2011
1:44 pm
Why did the Family Leave Act Law fail my husband?
My husband had open heart surgery and was off work for four months. His company layed him off after the first thirty day and took away all his benifites. Is the Family Leave Act Law not for all employees or was his company at fault. HELP.
January 21, 2011
1:59 pm
There could be many reasons. FMLA does not apply to all companies, I think that an employer must be of a certain size and not otherwise exempt. Also, employees must have worked for a full year at their present employer to qualify. It is also possible that his employer did so in violation of FMLA. I would contact their Benefits department to see what happened, maybe even find an employment/labor attorney to assist.
Last, although his benefits were cancelled, he is eligible under COBRA to continue his benefit coverage, at the full cost (as opposed to the subsidized cost you normally pay as an employee). The employer is required by law to send COBRA paperwork to you within 30 days of termination.
Good luck.
January 21, 2011
8:09 pm
What benefits for the Women’s Movement were achieved by, The Family Law Act of 1975 ?
thanks for the responses
January 21, 2011
8:09 pm
what was the 1975 family law act meant to..?
What was the 1975 Family Law Act meant to imply? what was it’s purpose, was it meant to encourage something, maybe influence, change, improve something?
i know it influenced the amount of dicorved or separatated couples. but what else did it specifically have affect on?
January 21, 2011
8:10 pm
are children at risk due to the changes in the family law act 1975?