De Facto Separation Financial Agreement Template

What is a de facto separation agreement?

A de facto separation agreement is a binding financial agreement (BFA) made under section 90UD of the Family Law Act 1975 (Cth). It is entered into after a de facto relationship has ended and allows separated de facto couples to divide their property, finances, and superannuation without the need to go to court.

Section 90UD falls within Part VIIIAB of the Family Law Act, which is the division that specifically deals with financial matters arising from the breakdown of de facto relationships at the federal level. This part was introduced to give de facto couples a framework comparable to what married couples have under Part VIIIA.

A s90UD agreement is the most common type of financial agreement used by de facto couples after separation. It provides a private, legally binding way to record how assets, debts, and financial resources will be divided between the parties - without requiring approval from a judge or filing anything with the Family Court.

When do you need a de facto separation agreement?

A de facto separation agreement under s90UD is appropriate when:

• You and your de facto partner have separated and need to divide your assets, property, and financial resources between you.
• You want to avoid the cost, stress, and delay of going to the Family Court for a property settlement. Court proceedings can take 12 months or more and cost tens of thousands of dollars in legal fees.
• You and your former partner have already agreed - or can agree - on how to split your property and want to make that agreement legally binding.
• You want to deal with superannuation splitting as part of your overall settlement, which requires a specific clause or flagging agreement within the BFA.
• You are aware of the 2-year time limit under s44(5) of the Family Law Act, which generally requires you to apply to the court for a property order within 2 years of separation. A BFA avoids this issue entirely because it is a private agreement that can be made at any time - there is no statutory deadline for entering into one.

What does a de facto separation agreement cover?

A properly drafted s90UD agreement can deal with the full range of financial matters between separating de facto partners. Common items covered include:

• Division of the family home (including transfer, sale, or buyout arrangements)
• Bank accounts and savings
• Investments and shares
• Vehicles and personal property
• Business interests
• Superannuation splitting
• Debts and liabilities (including mortgages, personal loans, and credit cards)
• Spousal maintenance (if applicable)

The agreement should be comprehensive and deal with all financial matters between the parties so that neither party can later apply to the court for further orders.

Requirements for a valid s90UD agreement

For a de facto separation agreement to be legally binding under the Family Law Act, it must meet several strict requirements:

• The agreement must be in writing and signed by both parties.
• Both parties must receive independent legal advice (ILA) from separate lawyers before signing. Each party must have their own lawyer - the same lawyer cannot advise both sides.
• Each lawyer must sign a certificate under s90UJ confirming that they provided advice to their client about the effect of the agreement on their rights and the advantages and disadvantages of making the agreement.
• Both parties must make full and frank financial disclosure to each other. Failing to disclose material assets or liabilities can be grounds for the agreement to be set aside later.

If you need affordable independent legal advice for signing your agreement, visit our panel of lawyers who provide fixed-fee ILA certificates for financial agreements.

Western Australia - section 205ZP

De facto couples in Western Australia are not covered by the federal Family Law Act for property and financial matters. Instead, WA de facto relationships are governed by the Family Court Act 1997 (WA), which has its own equivalent provisions.

Section 205ZP of the Family Court Act 1997 (WA) is the Western Australian equivalent of s90UD. It allows de facto couples in WA to make a binding financial agreement after separation, covering the same range of financial matters - property, superannuation, debts, and spousal maintenance.

Our WA Agreement tier is drafted specifically for Western Australian requirements under s205ZP, referencing the correct legislation, court system, and procedural requirements. The same independent legal advice and signing requirements apply - both parties need separate lawyers, and each lawyer must provide a signed certificate confirming advice was given.

Superannuation splitting after de facto separation

Superannuation is often one of the largest assets a couple holds, and it can be split as part of a s90UD financial agreement. To split superannuation, the agreement must include either a superannuation splitting clause (also called a payment split) or a flagging agreement that preserves the superannuation until a later date.

Our "Separation + Super Split" tier includes the superannuation splitting clause drafted to comply with the requirements of the Family Law (Superannuation) Regulations 2001. This clause specifies how the superannuation interest is to be split between the parties and the operative time for the split.

Once the agreement is signed and the certificates are in place, the super fund trustee must be served with a copy of the agreement (or the relevant parts of it) so that the trustee can action the split. The trustee may also charge an administration fee for processing the split.

If you need to split superannuation, choose our "+ Super Split" tier which includes the necessary clauses.

De facto separation agreement vs consent orders

When separating de facto couples agree on how to divide their property, they have two main options to formalise that agreement: a binding financial agreement (BFA) under s90UD or consent orders filed with the Family Court. Each has distinct characteristics:

Binding financial agreement (s90UD): A BFA is a private contract between the parties. It does not need court approval and is not filed with the court. It does require both parties to obtain independent legal advice, and each lawyer must provide a signed certificate. A BFA is generally quicker and cheaper to finalise than consent orders.

Consent orders: Consent orders are filed with the Family Court and must be approved by a judge or registrar. The court will only make the orders if it is satisfied that they are "just and equitable." Once made, consent orders are legally enforceable as a court order and can be enforced through the court's contempt powers.

For most couples who have already agreed on how to split their property, a BFA under s90UD is the faster and more affordable option.

Time limits for de facto property settlements

Under s44(5) of the Family Law Act, a de facto partner generally has 2 years from the date of separation to apply to the Family Court for a property settlement order. If you miss this deadline, you must seek leave (permission) of the court to make a late application, and the court will only grant leave if it would cause hardship to the applicant or if there are other special circumstances.

A binding financial agreement under s90UD is not subject to this 2-year limitation. A BFA can be made at any time after separation - whether it has been 6 months, 2 years, or 5 years since the relationship ended. This makes a BFA particularly useful for couples who have been separated for an extended period and want to formalise their property arrangements without needing to seek leave from the court.

If more than 2 years have passed since your separation and you have not yet dealt with property matters, a BFA is often the better and more practical option compared to applying to the court for leave.

Can a de facto separation agreement be set aside?

While a properly executed s90UD agreement is legally binding, there are limited circumstances in which a court may set aside (invalidate) the agreement under s90UM of the Family Law Act. These include:

• Fraud - including a failure to disclose material assets, liabilities, or financial resources.
• Duress, undue influence, or unconscionable conduct - if one party was pressured or coerced into signing the agreement.
• The agreement is void or unenforceable - for example, due to a failure to comply with the signing and certification requirements.
• A material change in circumstances relating to the care, welfare, and development of a child of the relationship, making it impracticable for the agreement to be carried out.

The best way to protect your agreement from being set aside is to ensure full financial disclosure by both parties, that both parties receive proper independent legal advice, and that the agreement is entered into freely and voluntarily without any pressure or coercion.

Frequently asked questions

Related templates