Most people think living at different addresses means you’re not in a de facto relationship.
Not necessarily.
The Court considers the whole relationship, including financial arrangements, commitment to a shared life, public aspects of the relationship, mutual support and many other factors.
Sharing an address is only one factor.
One of the biggest misconceptions I see is people saying:
“We’ve only lived together for 18 months, so family law doesn’t apply.”
That’s not always true.
Many people don’t realise there are exceptions to the usual two-year requirement for de facto property claims.
For example, in jurisdictions where de facto relationships can be formally registered, registration may mean the two-year requirement doesn’t apply. There are also other exceptions, such as where there’s a child of the relationship or where one party has made substantial contributions and serious injustice would result if orders weren’t available.
The important point is that the “two-year rule” isn’t an absolute rule.
It’s one of those areas where people often rely on something they’ve heard from a friend or seen online, only to discover later that the law is more nuanced.
A Binding Financial Agreement is not simply a document that records who keeps what.
It is an agreement intended to remove the Family Court’s jurisdiction over property settlement and, where applicable, spousal maintenance. Because of that, it must satisfy strict legislative requirements and be capable of withstanding legal scrutiny if challenged in the future.
This is where templates and AI-generated agreements often fall short.
They may produce legal-sounding wording, but they cannot tailor an agreement to your unique circumstances or ensure that every provision works together consistently.
A properly drafted Binding Financial Agreement should include comprehensive recitals setting out the parties’ circumstances and intentions, detailed schedules identifying assets, liabilities and financial resources, and carefully drafted operative provisions explaining exactly what is to occur if separation takes place.
It should also deal with issues such as family trusts, inheritances, businesses, future capital growth, substituted property, refinancing mechanisms, superannuation, spousal maintenance and enforcement provisions where relevant.
Most importantly, every clause must operate consistently with every other clause. A contradiction or omission may become the focus of future litigation.
Independent legal advice is equally important. It is far more than signing a certificate. It requires a detailed clause-by-clause analysis, an explanation of the nature and effect of the agreement, its advantages and disadvantages, and advice that enables the client to make an informed decision.
One of the most common reasons Binding Financial Agreements are challenged is not simply poor drafting. Allegations of pressure, undue influence, inadequate advice and a lack of understanding frequently arise when agreements are rushed or treated as a formality.
Signing an agreement is easy.
Preparing one that is carefully drafted, legislatively compliant and designed to withstand legal scrutiny is where specialist experience matters.
When you are contracting out of the Family Court’s jurisdiction, there is very little room for shortcuts.