Do unmarried couples in Australia have property rights when a relationship ends?

Yes. Under Part VIIIAB of the Family Law Act 1975 (Cth), de facto couples who have cohabited for at least two years (or who have a child together, or where one party has made a substantial contribution) may apply to the Federal Circuit and Family Court of Australia for property division orders and maintenance orders. These rights are similar to those available to married couples. Several states add further protections: in NSW, the Property (Relationships) Act 1984 (NSW) allows de facto partners to apply for property adjustment orders; in SA, the Domestic Partners Property Act 1996 (SA) applies; in Tasmania, the Relationships Act 2003 (TAS) governs registered personal relationships. Western Australia does not apply the Commonwealth Family Law Act to de facto couples — instead, the Family Court Act 1997 (WA) governs de facto property matters in that state. This means that in WA, different rules apply and legal advice specific to WA should be sought.

When does a de facto relationship begin for legal purposes in Australia?

Under the Family Law Act 1975 (Cth) section 4AA, a de facto relationship is a relationship between two adults who live together as a couple on a genuine domestic basis. There is no single date of commencement — whether a de facto relationship exists, and when it began, is determined by considering all the relevant circumstances, including the duration of the relationship, the nature and extent of the common residence, the degree of financial dependence or interdependence, the care and support of children, the performance of household duties, and the reputation and public aspects of the relationship. Under Part VIIIAB, property division rights generally arise after two years of cohabitation, but this two-year period can be counted from the actual start of the de facto relationship even if no formal agreement was made at that time. This is one reason why making a Cohabitation Agreement from the start of living together is advisable.

Does a Cohabitation Agreement cover superannuation in Australia?

A standard Cohabitation Agreement does not automatically deal with superannuation in a legally binding way. In Australia, superannuation is not classified as 'property' under the general law but is treated as a 'financial resource' in de facto property proceedings under the Family Law Act 1975 (Cth). The splitting of superannuation interests between de facto couples requires compliance with Part VIIIB of the Family Law Act, which allows a superannuation agreement or consent order to direct a superannuation fund trustee to split a member's benefit. If the parties wish to make binding arrangements about superannuation, those arrangements must comply with Part VIIIB and should be included in a Binding Financial Agreement reviewed by solicitors with experience in superannuation law. Without a compliant superannuation agreement, a court can still make orders about superannuation splitting if proceedings are commenced after separation.

What is the difference between a Cohabitation Agreement and a Binding Financial Agreement in Australia?

A Cohabitation Agreement and a Binding Financial Agreement (BFA) serve similar purposes but have different legal effects. A Cohabitation Agreement is a private contract that records the parties' arrangements and intentions. It is persuasive in court proceedings but does not automatically bind a court or remove its jurisdiction to make different orders. A Binding Financial Agreement under the Family Law Act 1975 (Cth) — specifically under sections 90UC (during a de facto relationship) or 90UD (after separation) for de facto couples — is a legally binding document that, if validly made, removes the court's power to make property and maintenance orders about the matters it covers. For a BFA to be valid, each party must receive independent legal advice from a separate Australian solicitor before signing, and each solicitor must provide a signed certificate confirming that advice was given. Without these requirements, even an agreement labelled as a BFA will not be legally binding.

Cohabitation Agreement (Australia) — Australia

A Cohabitation Agreement is a written contract between two people who are living together — or planning to live together — as an unmarried couple. It sets out each party's rights and obligations in relation to property, finances, and other shared arrangements during their relationship, and specifies what happens to property, shared finances, and the shared residence if the relationship ends. In Australia, cohabitation agreements are particularly significant because of the legal rights that can arise once an unmarried couple has lived together as a de facto couple. Under Part VIIIAB of the Family Law Act 1975 (Cth), de facto couples — including same-sex couples — who have cohabited for at least two years (or who have a child together, or where one party has made a substantial contribution) may apply to the Federal Circuit and Family Court of Australia for property division orders and maintenance orders. These are the same court processes available to married couples. This means that without a clear agreement in place, an unmarried Australian couple's property and financial arrangements may be subject to court intervention at the end of the relationship in much the same way as a marriage. Several state and territory Acts add additional layers of protection for cohabiting partners. In New South Wales, the Property (Relationships) Act 1984 (NSW) allows de facto partners and domestic partners to apply for property adjustment orders after two years of cohabitation. In South Australia, the Domestic Partners Property Act 1996 (SA) provides similar rights. In Tasmania, the Relationships Act 2003 (TAS) establishes a formal registration scheme for personal relationships, with property rights arising from registration. Victoria, Queensland, Western Australia, and the ACT provide similar rights under their respective domestic relationships or de facto provisions. A Cohabitation Agreement allows couples to take control of their financial relationship before the law imposes a default framework on them. The agreement can clearly state which property each party owns separately (including property brought into the relationship, and property received as gifts or inheritances during the relationship), how jointly acquired property will be owned, how shared household expenses will be allocated, how a joint bank account will be operated and divided, and what will happen to the shared residence and other assets if the relationship ends. For couples who are beginning to cohabit, a Cohabitation Agreement provides clarity and certainty at the outset of the relationship, avoiding disputes about who owns what if things go wrong. For couples who have cohabited for some time, a Cohabitation Agreement can document their existing arrangements and clarify their intentions going forward. A Cohabitation Agreement is different from a Binding Financial Agreement (BFA) under the Family Law Act 1975 (Cth). A BFA is a more formal document that, if properly executed with each party receiving independent legal advice from a separate Australian solicitor and those solicitors providing the required certificates, can be legally binding and can remove the court's jurisdiction to make property orders. A Cohabitation Agreement that does not meet the requirements of a BFA under section 90UC or 90UD of the Family Law Act will not have the same legally binding effect but still provides a valuable record of the parties' intentions and arrangements, and may be taken into account by a court in any subsequent proceedings. Both parties should make full and frank disclosure of their assets, liabilities, income, and superannuation. Failure to disclose material financial information is a ground on which a court may disregard the terms of any financial agreement. Both parties are strongly encouraged to seek independent legal advice from separate solicitors before signing. This template provides a comprehensive starting point for an Australian Cohabitation Agreement. For the agreement to have maximum legal protection — particularly if the parties wish it to operate as a Binding Financial Agreement under the Family Law Act — it should be reviewed and signed with the assistance of two separately instructed Australian solicitors.

What Is a Cohabitation Agreement (Australia)?

A Cohabitation Agreement is a written contract between two adults who are living together — or planning to live together — as an unmarried couple. It sets out how the couple will manage their property, finances, and shared arrangements during the relationship, and what will happen if the relationship ends.

In Australia, cohabitation agreements are particularly important because of the legal rights that arise under Australian de facto relationship law. Under Part VIIIAB of the Family Law Act 1975 (Cth), de facto couples who have cohabited for at least two years — or who have a child together, or where one party has made a substantial contribution to the relationship — may apply to the Federal Circuit and Family Court of Australia for property division orders and maintenance orders. The Property (Relationships) Act 1984 (NSW) similarly grants property adjustment rights to de facto partners after two years in NSW.

A Cohabitation Agreement typically addresses: which property each party owns separately (including pre-relationship property and property acquired by gift or inheritance); how jointly acquired property during the relationship will be owned; how shared household expenses will be split; how any joint bank account will operate; and what happens to property and the shared residence on separation.

A Cohabitation Agreement that meets the requirements of a Binding Financial Agreement under sections 90UC or 90UD of the Family Law Act (including the requirement that each party receives independent legal advice from a separate solicitor) will be legally binding and can remove the court's jurisdiction to make property orders about the covered matters.

When Do You Need a Cohabitation Agreement (Australia)?

A Cohabitation Agreement is relevant for any unmarried couple who are moving in together or who are already living together and wish to clarify their financial arrangements.

Couples with significant separate assets — such as property, investments, a business, or superannuation — benefit from a clear written record of what they each own separately and how they intend to manage jointly acquired assets. Without clarity, these assets can become the subject of dispute if the relationship ends.

Couples who have children from previous relationships should consider a Cohabitation Agreement to protect each party's ability to provide for those children from their separate assets, and to prevent those assets from becoming subject to de facto property claims.

Couples at the start of their relationship who are moving in together benefit from addressing financial arrangements before any issues arise. It is easier to agree on fair terms at the beginning of a relationship than after years of cohabitation and intermingled finances.

Couples who have been living together for some time but have not addressed their financial arrangements formally can use a Cohabitation Agreement to document their existing arrangements and clarify their intentions for the future.

A Cohabitation Agreement becomes increasingly important after two years of cohabitation, because at that point de facto property rights under the Family Law Act 1975 (Cth) may be fully available to both parties. Any agreement entered into before or early in the relationship provides a clearer record of the parties' pre-relationship assets.

What to Include in Your Cohabitation Agreement (Australia)

A well-drafted Australian Cohabitation Agreement should contain the following key elements.

Identification of the parties and the effective date establishes who is bound by the agreement and when it takes effect. Both parties should be identified by their full legal names and residential addresses.

A clear description of the shared residence — including the address and the nature of the tenancy or ownership — is essential. If one party owns the property, the agreement should address what rights (if any) the other party has in relation to the property during and after the relationship.

Full and frank disclosure of each party's separate property is important for the agreement to have legal credibility. Each party's pre-relationship assets, and any assets received as gifts or inheritances during the relationship, should be scheduled in annexures. Failure to disclose material assets is a ground on which a court might disregard an agreement in subsequent proceedings.

The provisions about jointly acquired property should clearly state how property purchased together during the relationship will be owned — whether as joint tenants, tenants in common in equal shares, or in proportions reflecting financial contributions.

Financial arrangements covering joint accounts and shared expenses should specify what expenses are shared, how they are divided (equally, proportionately to income, or otherwise), and how any joint bank account is to be operated and divided.

Separation and termination provisions should address the notice period required to end the agreement, how long a party has to vacate the shared residence, and how property will be divided on separation.

A de facto relationship acknowledgment informs both parties of their rights under Australian de facto legislation, including the Family Law Act 1975 (Cth) Part VIIIAB. This acknowledgment demonstrates informed consent.

Independent legal advice is strongly recommended before signing. For the agreement to operate as a Binding Financial Agreement under the Family Law Act, independent advice is mandatory.

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