Cohabitation Financial Agreement Template

What is a cohabitation agreement?

A cohabitation agreement is a binding financial agreement (BFA) made under section 90UC of the Family Law Act 1975 (Cth). It is specifically designed for couples who are already in a de facto relationship and want to formalise how their property, finances, and other financial resources will be divided if they separate.

The agreement falls under Part VIIIAB of the Family Law Act, which governs financial matters for de facto couples at the federal level. By entering into a s90UC agreement, both parties gain certainty about their financial arrangements without needing to go to court.

It is important to distinguish a cohabitation agreement from a pre-cohabitation agreement made under section 90UB. A pre-cohabitation agreement is made before a couple begins living together, whereas a s90UC agreement is made during the relationship - after the couple has already moved in together. If you have not yet started cohabiting, you may want to consider a pre-cohabitation agreement instead.

Why make a cohabitation agreement?

There are many practical reasons why de facto couples choose to formalise their financial arrangements during their relationship. A cohabitation agreement provides clarity and protection for both parties, particularly in the following situations:

• You have been living together for some time and want to protect what each of you brought into the relationship, including savings, investments, or property owned before the relationship began.
• You have acquired assets together - such as a home, shares, or joint investments - and want a clear understanding of how these will be divided if the relationship ends.
• One partner is bringing significantly more assets or wealth into the relationship and wants to ring-fence those contributions.
• You want to avoid the uncertainty, emotional toll, and substantial cost of going to the Family Court if you separate.
• You have experienced a previous relationship breakdown and understand the value of having a financial agreement in place from the outset.

Without a binding financial agreement, the Family Court has broad discretion under the Family Law Act to divide your property in a way that may not reflect what you and your partner would have agreed to. A cohabitation agreement allows you to take control of that outcome.

What does a cohabitation agreement cover?

A s90UC cohabitation agreement can deal with a wide range of financial matters. Our template covers the key areas that are most relevant to de facto couples:

• How existing assets owned by each party will be treated - whether they remain separate property or form part of the shared pool
• How jointly acquired property (such as a home or investment property) will be divided on separation
• Superannuation entitlements and how they will be split or retained
• Whether spousal maintenance will be payable, and if so, on what terms
• How debts and liabilities - including mortgages, personal loans, and credit card debt - will be allocated
• The treatment of business interests, including shares in companies, partnerships, or trusts
• Inheritance expectations and how future inheritances will be treated if received during the relationship

Requirements for a valid s90UC agreement

For a cohabitation agreement to be legally binding under the Family Law Act 1975, it must satisfy several strict requirements. If these requirements are not met, a court may declare the agreement void or set it aside. The key requirements are:

• In writing and signed: The agreement must be a written document signed by both parties. Oral agreements are not enforceable as binding financial agreements.
• Independent legal advice: Each party must receive independent legal advice from a separate lawyer before signing. Both parties cannot use the same lawyer.
• Signed lawyer statements: Each lawyer must provide a signed statement confirming that they have advised their client about the effect of the agreement on their rights and about the advantages and disadvantages of making the agreement. These statements must comply with section 90UJ of the Act.
• Full financial disclosure: Both parties must make honest and complete disclosure of their financial circumstances. Failure to disclose assets, income, or liabilities can be grounds for the agreement to be set aside.

Independent legal advice (ILA) is a mandatory requirement. If you need affordable ILA, our panel of lawyers can assist both parties at a competitive fixed fee.

Western Australia - section 205ZO

De facto couples in Western Australia are not covered by the federal Family Law Act provisions for financial agreements. Instead, WA de facto relationships are governed by the Family Court Act 1997 (WA). Section 205ZO of the WA Act is the equivalent of section 90UC under the federal legislation.

Our WA Agreement tier is drafted specifically for Western Australian requirements, referencing the correct legislation and court system. The substantive requirements are similar - the agreement must be in writing, signed by both parties, and each party must receive independent legal advice with accompanying signed certificates from their lawyers.

If you and your partner live in Western Australia, you should use the WA tier rather than the base agreement to ensure your agreement references the correct statutory framework.

Cohabitation agreement vs postnuptial agreement

A cohabitation agreement under s90UC is designed for de facto couples during their relationship, while a postnuptial agreement under s90C is designed for married couples during their marriage. Although both serve a similar purpose - formalising financial arrangements while the relationship is ongoing - they operate under different parts of the Family Law Act.

If you are currently in a de facto relationship but plan to marry in the future, it is worth considering our Cohab + Prenup Bundle. This bundle includes both a s90UC agreement (for your de facto period) and a s90B agreement (prenuptial, for when you marry), ensuring you are covered at every stage of your relationship.

If you are already married, a cohabitation agreement is not the right document for you. Instead, see our postnuptial agreement template.

What is the Continuing Relationship Kit?

The Continuing Relationship Kit is a general-purpose binding financial agreement designed for couples who are in an ongoing relationship - whether de facto or married. It provides a straightforward template for couples who want to formalise the basics without needing to determine whether section 90UC or section 90C is the most appropriate provision.

The kit covers the essential financial matters: property division, superannuation splitting, and spousal maintenance. It is drafted to be flexible and suitable for a range of circumstances, making it an ideal choice if you are unsure which specific agreement type applies to your situation, or if you simply want a clean, uncomplicated agreement.

For couples who have more complex financial arrangements - such as significant business interests, trusts, or international assets - the Base Agreement or WA Agreement tiers may be more appropriate, as they provide more detailed clauses and guidance.

Can a cohabitation agreement be set aside?

Yes. Under section 90UM of the Family Law Act 1975, a court has the power to set aside a binding financial agreement in certain circumstances. This is an important consideration, because even a properly executed agreement can be overturned if the court finds sufficient grounds. The most common grounds include:

• Fraud: One party engaged in fraudulent conduct, such as hiding assets or providing false information about their finances.
• Non-disclosure: A party failed to disclose material financial information before the agreement was signed.
• Duress or undue influence: One party was pressured, coerced, or unduly influenced into signing the agreement.
• Unconscionable conduct: The agreement was obtained through conduct that was unconscionable or unfair in the circumstances.
• Material change in circumstances: There has been a significant change in circumstances - particularly relating to the care of children - that makes the agreement impracticable or unjust.

The best way to protect your agreement from being set aside is to ensure both parties make honest and complete financial disclosure, obtain proper independent legal advice, and enter into the agreement freely and voluntarily. Our template includes guidance on each of these points to help you get it right.

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