Pre-Cohabitation Financial Agreement Template

What is a pre-cohabitation agreement?

A pre-cohabitation agreement is a binding financial agreement (BFA) made under section 90UB of the Family Law Act 1975 (Cth). It is entered into before two people begin living together as a de facto couple. The agreement allows both parties to set out, in advance, how their property, financial resources, and other assets will be divided if the relationship later breaks down.

The purpose of a pre-cohabitation agreement is to protect the assets, savings, investments, and property that each party brings into the relationship. Rather than relying on the court to decide how those assets should be split, a properly executed s90UB agreement gives both parties certainty and control over their financial future.

Pre-cohabitation agreements fall under Part VIIIAB of the Family Law Act 1975, which governs financial agreements for de facto couples at the federal level. The agreement can cover how existing property is to be dealt with, how future property will be treated during the relationship, superannuation interests, and whether spousal maintenance will be payable.

When do you need a pre-cohabitation agreement?

A pre-cohabitation agreement is most useful when one or both parties want to establish clear financial boundaries before moving in together. You should consider a pre-cohabitation agreement in the following situations:

• Before moving in with your partner - once you begin living together, you may be considered a de facto couple under the Family Law Act, and property division rules apply.
• If you own property, have savings, business interests, or superannuation you want to protect - a s90UB agreement lets you ring-fence the assets you had before the relationship started.
• If your partner has debts you want to keep separate - the agreement can specify that each party remains responsible for their own pre-existing liabilities.
• If you have been through a previous separation and want clarity upfront - many people who have experienced a property settlement before want to avoid the same uncertainty in a new relationship.

The key requirement is timing. A s90UB agreement must be made before the de facto relationship begins. If you have already moved in together, you will need a cohabitation agreement under s90UC instead.

What does a pre-cohabitation agreement cover?

A pre-cohabitation agreement under s90UB can address a wide range of financial matters. Our template covers the following:

• Existing property and assets each party brings into the relationship
• How future assets acquired during the relationship will be treated
• Superannuation interests and how they will be dealt with on separation
• Spousal maintenance - whether it will be payable and on what terms
• Debts and liabilities each party is responsible for
• What happens to the family home if the relationship ends, including whether it will be sold or retained by one party

By addressing these matters upfront, both parties enter the relationship with a shared understanding of their financial rights and obligations. This reduces the risk of costly and emotionally draining disputes later on.

Requirements for a valid s90UB agreement

For a pre-cohabitation agreement to be legally binding under section 90UB, it must satisfy several strict requirements set out in the Family Law Act:

• The agreement must be in writing and signed by both parties.
• Both parties must receive independent legal advice (ILA) before signing. Each party must consult their own separate lawyer.
• Each lawyer must provide a signed statement or certificate under section 90UJ, confirming that they gave advice about the effect of the agreement on the rights of that party, and the advantages and disadvantages of entering into the agreement.
• The agreement must not have been terminated or set aside by a court.

If these requirements are not met, the agreement may not be enforceable. Independent legal advice is the most common point of failure - both parties must genuinely receive advice from their own lawyer, and the lawyer's certificate must be attached to the agreement. If you need affordable independent legal advice, visit our lawyers page for options.

Western Australia - section 205ZN

De facto couples in Western Australia are not covered by Part VIIIAB of the Family Law Act 1975. Instead, WA de facto financial agreements are governed by the Family Court Act 1997 (WA). Section 205ZN is the WA equivalent of section 90UB and applies to financial agreements made before a de facto relationship begins.

While the general principles are similar - the agreement must be in writing, signed by both parties, and supported by independent legal advice - the specific legislative provisions and procedural requirements differ. Our WA Agreement tier includes a template drafted specifically for Western Australia's requirements under section 205ZN, so you can be confident the agreement complies with the correct legislation.

The same ILA and signing requirements apply. Each party must receive independent legal advice from their own lawyer, and each lawyer must provide a signed certificate confirming that advice was given.

Pre-cohabitation agreement vs prenuptial agreement

A pre-cohabitation agreement and a prenuptial agreement serve a similar purpose - protecting assets before a relationship formalises - but they apply to different types of relationships and are governed by different sections of the Family Law Act.

• A pre-cohabitation agreement (s90UB) is for de facto couples who are about to move in together. It is made before the de facto relationship begins.
• A prenuptial agreement (s90B) is for couples who are planning to marry. It is made before the marriage takes place.

If you and your partner are both moving in together and planning to marry in the future, you may want to consider both agreements. Our Pre-Cohab + Prenup Bundle combines the s90UB and s90B templates so you are covered regardless of whether you remain in a de facto relationship or go on to marry. You can also view our standalone prenuptial agreement template.

Can a pre-cohabitation agreement be set aside?

Yes. A court can set aside a pre-cohabitation agreement under section 90UM of the Family Law Act. This section operates in a similar way to section 90K, which applies to financial agreements between married couples. The grounds on which a court may set aside a s90UB agreement include:

• Fraud - if one party was induced to enter the agreement by fraud, including non-disclosure of a material matter.
• Non-disclosure of assets - if a party failed to disclose relevant financial information before the agreement was signed.
• Duress or undue influence - if one party was pressured or coerced into signing.
• Unconscionable conduct - if the agreement is so unfair that it would be unconscionable to enforce it.
• Material change in circumstances - particularly where a child of the relationship would suffer hardship if the agreement were enforced as written.

The best way to reduce the risk of an agreement being set aside is to ensure full and frank financial disclosure by both parties, obtain proper independent legal advice, and make sure the terms of the agreement are fair and reasonable in the circumstances.

Frequently asked questions

Related templates