Does a Domestic Partnership Agreement need to be signed by a solicitor to be binding in Australia?

Yes, if the parties want the agreement to constitute a binding financial agreement under section 90UC of the Family Law Act 1975 (Cth) that ousts the court's jurisdiction to make a property order. To have binding financial agreement status, the agreement must comply with section 90UB (before the relationship), section 90UC (during the relationship) or section 90UD (after separation) of the Family Law Act 1975 (Cth). The critical formal requirement is that before signing, each party must have received independent legal advice from a solicitor about the effect of the agreement on the rights of that party and whether entering into the agreement is advantageous. Each party's solicitor must provide a signed certificate of independent legal advice. Without these certificates, the agreement will not have binding financial agreement status, and a court will have jurisdiction to make property orders under section 90SM. A Domestic Partnership Agreement prepared without independent legal advice and solicitor certificates is therefore not enforceable as a binding financial agreement but may still have evidentiary value about the parties' intentions. The parties are strongly encouraged to seek independent legal advice from a family law solicitor before signing this document.

How is property divided when a de facto relationship ends in Australia?

If a de facto relationship ends and the parties do not have a binding financial agreement, either party can apply to the Federal Circuit and Family Court of Australia (FCFCOA) for a property order under section 90SM of the Family Law Act 1975 (Cth). The court applies a four-step process to divide the asset pool. Step one is to identify and value all assets, liabilities and financial resources of both parties. Step two is to assess the contributions of each party — both financial contributions (earnings, inherited property, gifts) and non-financial contributions (homemaking, child-rearing, improvements to property). Step three is to consider future needs, including the age, health, income capacity and care responsibilities of each party after separation. Step four is to determine whether the proposed division is 'just and equitable' in all the circumstances. A Domestic Partnership Agreement (binding financial agreement) displaces this court process and replaces it with the agreed division set out in the agreement. This is the primary advantage of having a valid binding financial agreement: it provides certainty about financial outcomes if the relationship ends, regardless of what a court might otherwise order.

Can de facto partners split superannuation on separation in Australia?

Yes. The superannuation splitting regime under the Family Law Act 1975 (Cth) applies to de facto couples as well as married couples. If a de facto relationship ends and the parties cannot agree, either party can apply for a superannuation splitting order under section 90MT of the Family Law Act 1975 (Cth), which operates similarly to the superannuation splitting provisions for married couples under Part VIIIB of the Act. A superannuation splitting order is not a payment to the other party but a division of the superannuation interest — part of one party's superannuation is split off and either transferred to the other party's superannuation fund or retained as a new separate interest. The parties can also agree to a superannuation split in a binding financial agreement. Superannuation is often a significant asset in long de facto relationships, and its treatment should always be specifically addressed in a Domestic Partnership Agreement. Note that Western Australian de facto couples are not covered by the federal superannuation splitting regime and must rely on the Family Court Act 1997 (WA) instead.

Does a Domestic Partnership Agreement in Australia apply in Western Australia?

De facto financial agreements in Western Australia are governed by a different legal framework from the rest of Australia. While all other states and territories are covered by Part VIIIAB of the Family Law Act 1975 (Cth), Western Australia has not referred its de facto relationship powers to the Commonwealth. Instead, de facto relationships in Western Australia are governed by the Family Court Act 1997 (WA), which is administered by the Family Court of Western Australia. The substantive provisions are broadly similar — including the ability to make financial agreements — but the formal requirements, the court responsible, and some specific rules differ. De facto couples who live in Western Australia, or who have significant connections to Western Australia, should seek independent legal advice from a solicitor admitted in Western Australia to ensure their Domestic Partnership Agreement meets the requirements of the Family Court Act 1997 (WA) rather than relying solely on the federal framework under the Family Law Act 1975 (Cth).

Domestic Partnership Agreement (Australia) — Australia

A Domestic Partnership Agreement — also known as a De Facto Financial Agreement — is a legally significant document under which two de facto partners set out their respective financial rights and obligations during their relationship and, critically, on the breakdown of that relationship. In Australia, the Family Law Act 1975 (Cth) was substantially amended in 2009 to extend the federal financial settlement framework to de facto couples in all states and territories except Western Australia (which operates under its own Family Court Act 1997 (WA)). Part VIIIAB of the Family Law Act 1975 (Cth) governs de facto financial agreements and property orders, providing de facto partners with substantially the same rights and obligations as married couples in relation to property settlement and spousal maintenance. A de facto relationship is defined in section 4AA of the Family Law Act 1975 (Cth) as a relationship between two persons who are not legally married to each other, are not related by family, and have a relationship as a couple living together on a genuine domestic basis. In determining whether a de facto relationship exists, courts consider a range of factors including the duration of the relationship, the nature and extent of the common residence, the degree of financial dependence or interdependence, the ownership and use of property, the degree of mutual commitment to a shared life, the care and support of children, and the reputation and public aspects of the relationship. There is no prescribed minimum period for a de facto relationship to exist, but the court generally requires at least two years of cohabitation before it will make property orders in favour of a de facto partner, subject to exceptions under section 90SB of the Family Law Act 1975 (Cth) (such as where there is a child of the relationship or where a party has made substantial contributions). A Domestic Partnership Agreement made under Part VIIIAB of the Family Law Act 1975 (Cth) — also known as a binding financial agreement — can be made before the de facto relationship commences (a 'pre-nuptial equivalent'), during the de facto relationship, or after separation. To constitute a binding financial agreement under section 90UC of the Act and thereby oust the jurisdiction of the Federal Circuit and Family Court of Australia to make a property order under section 90SM, the agreement must meet strict formal requirements: it must be in writing, it must be signed by both parties, and — most critically — each party must have received independent legal advice from a solicitor about the effect of the agreement on their rights and whether the agreement is advantageous, before signing. Each party's solicitor must provide a signed certificate of independent legal advice, which is attached to the agreement. Without meeting these requirements, the document will not have binding financial agreement status and will not oust the court's jurisdiction, though it may still have evidentiary value as to the parties' intentions. A Domestic Partnership Agreement typically addresses several interconnected areas of financial life. The first is the identification and protection of each partner's separate property — the assets each partner brings to the relationship from before it commenced, or assets received during the relationship by gift or inheritance. Separate property provisions typically state that these assets remain each partner's individual property on the breakdown of the relationship, regardless of how long the relationship lasts. The second area is the treatment of property acquired jointly during the relationship — how jointly-acquired assets, joint accounts, a shared home and other shared financial interests will be dealt with. The third area is the treatment of superannuation. Under Australian law, superannuation is treated as a specific type of financial resource and can be the subject of splitting orders when a de facto relationship ends, under section 90MT and related provisions of the Family Law Act 1975 (Cth). A Domestic Partnership Agreement can include provisions dealing with superannuation, including an agreement by each party to keep their own superannuation or a more complex arrangement involving splitting of contributions made during the relationship. The fourth area is maintenance — commonly called de facto maintenance or spousal maintenance in the Australian context. Under section 90SF of the Family Law Act 1975 (Cth), a de facto partner may apply for maintenance if they are unable to support themselves adequately following the breakdown of the de facto relationship and the other party has the capacity to pay. A Domestic Partnership Agreement can include an agreement that neither party will seek maintenance from the other, which, if included in a binding financial agreement under section 90UC, will oust the court's maintenance jurisdiction. The fifth area is financial arrangements during the relationship itself — how household expenses will be shared, how income will be managed, and how joint debts and liabilities will be handled. While these provisions do not generally need court approval, including them provides clarity and reduces the potential for financial disputes during the relationship. Property settlement for de facto couples in Western Australia is governed by the Family Court Act 1997 (WA), which has its own provisions and procedural requirements that differ from the federal framework. Western Australian de facto couples should seek advice from a solicitor admitted in Western Australia about the specific requirements that apply to them. All other Australian states and territories follow the federal framework under Part VIIIAB of the Family Law Act 1975 (Cth).

What Is a Domestic Partnership Agreement (Australia)?

A Domestic Partnership Agreement — also known as a De Facto Financial Agreement — is a written document in which two de facto partners set out their respective financial rights and obligations, both during their relationship and on its breakdown. In Australia, de facto couples have substantial financial rights and obligations under the Family Law Act 1975 (Cth), and a Domestic Partnership Agreement enables those couples to organise their financial affairs on terms they have chosen, rather than leaving those affairs to be determined by a court if the relationship later ends.

The legal framework for de facto financial agreements in Australia is set out in Part VIIIAB of the Family Law Act 1975 (Cth). This Part was introduced in 2009 to extend the federal property and maintenance framework — previously available only to married couples — to de facto couples in all states and territories except Western Australia. Under section 4AA of the Family Law Act 1975 (Cth), a de facto relationship is a relationship between two persons who are not married to each other, are not related by family, and have a relationship as a couple living together on a genuine domestic basis. Same-sex couples are expressly included in this definition.

A Domestic Partnership Agreement made under Part VIIIAB will, if it complies with the formal requirements of section 90UB (pre-relationship), section 90UC (during relationship) or section 90UD (post-separation), constitute a binding financial agreement and oust the jurisdiction of the Federal Circuit and Family Court of Australia to make a property settlement order or maintenance order in respect of the de facto relationship. This means that if the relationship ends, the agreed terms — not a court's assessment — will determine the financial outcome. The practical benefit is certainty: both partners know from the outset of the relationship, or from the date of the agreement, how their finances will be handled if the relationship ends.

The core formal requirement for a binding financial agreement is independent legal advice. Before signing, each party must receive advice from their own independently retained solicitor about the effect of the agreement on their rights and whether the agreement is, or is not, advantageous. Each party's solicitor must sign a certificate confirming that this advice was given. Without these certificates, the agreement does not have binding financial agreement status and the court retains its general jurisdiction over property settlement.

When Do You Need a Domestic Partnership Agreement (Australia)?

A Domestic Partnership Agreement is appropriate for any de facto couple in Australia who wish to provide clarity and certainty about their financial arrangements — both during the relationship and if it ends. The three main circumstances in which it is used correspond to the three types of agreement under Part VIIIAB of the Family Law Act 1975 (Cth).

The first circumstance is before cohabitation commences — the equivalent of a pre-nuptial agreement for de facto couples. An agreement made before the relationship begins under section 90UB can specify how separate property brought to the relationship will be treated, and what the financial outcome will be if the relationship ends. This is particularly relevant when one partner has substantially more assets than the other, when one partner owns real property, or when one partner has children from a previous relationship and wishes to ensure their assets are preserved for those children.

The second circumstance is during the de facto relationship — an agreement made under section 90UC at any time during cohabitation. Partners who did not enter into an agreement before the relationship commenced may wish to do so once they are established as a couple — for example, when they purchase property together, when one partner makes a significant career change, or simply when they decide they want the certainty that a written financial agreement provides.

The third circumstance is following separation — an agreement made under section 90UD to deal with the financial consequences of the breakdown of the de facto relationship, without the need for court proceedings. A post-separation agreement can resolve the division of property, superannuation and maintenance by consent, providing a far faster, cheaper and less adversarial outcome than contested court proceedings.

A Domestic Partnership Agreement is also relevant when a de facto couple is planning to marry. If the parties subsequently marry, the agreement made under Part VIIIAB will no longer apply to the marriage, and a new agreement under Part VIIIA of the Family Law Act 1975 (Cth) — a binding financial agreement for married couples — would be needed. Many couples use the occasion of their engagement to review and update their financial agreement.

What to Include in Your Domestic Partnership Agreement (Australia)

A comprehensive Domestic Partnership Agreement for Australia should address the following key elements.

The first element is the identification of the parties: full legal names, dates of birth, addresses and contact details. The Agreement should identify the state or territory in which the parties live together and the date on which cohabitation commenced.

The second element is the background to the Agreement: a statement of the nature of the relationship (de facto relationship within the meaning of section 4AA of the Family Law Act 1975 (Cth)), the stage at which the Agreement is being made (pre-relationship, during the relationship, or post-separation), and an acknowledgement that the parties are entering the Agreement freely and having been given the opportunity to obtain independent legal advice.

The third element is Partner 1's separate property: a detailed list of the assets Partner 1 brings to the relationship or has received by gift or inheritance during it, with an acknowledgement by Partner 2 that these assets are Partner 1's sole property. This should include real property (with the address and approximate current value), superannuation (with the fund name and approximate balance), savings, investments and other significant assets.

The fourth element is Partner 2's separate property: the equivalent list for Partner 2, acknowledged by Partner 1.

The fifth element is joint and relationship property: how property acquired jointly during the relationship will be owned and dealt with.

The sixth element is financial arrangements during the relationship: how household expenses, income and joint debts are to be managed.

The seventh element is property division on separation: the core provision of a binding financial agreement — how the combined asset pool will be divided if the de facto relationship ends. This should be specific and exhaustive.

The eighth element is superannuation: how each partner's superannuation interests — including contributions made during the relationship — are to be dealt with on separation.

The ninth element (optional) is de facto maintenance: whether maintenance will be paid on separation, by whom, and for how long — or an agreement waiving maintenance claims.

The tenth element is dispute resolution, a review clause, and governing law provisions. The Agreement should also include the formal requirements for a binding financial agreement: confirmation that each party has received independent legal advice and a reference to the solicitor certificates that must be attached.

Frequently Asked Questions

Related Documents

You may also find these documents useful:

Binding Financial Agreement (Australia)

Create an Australian Binding Financial Agreement (prenuptial or postnuptial agreement) under Part VIIIA or Part VIIIAB of the Family Law Act 1975 (Cth). Covers property division, superannuation splitting under Part VIIIB, spousal maintenance, and full financial disclosure. Includes solicitor certificate provisions required under s90G.

Separation Agreement (Australia)

Create an Australian Separation Agreement covering property settlement under s79 FLA, parenting arrangements under Part VII FLA, child support under the Child Support (Assessment) Act 1989, spousal maintenance, superannuation splitting under Part VIIIB, and debt allocation. Suitable for married couples and de facto couples separating in all Australian states and territories.

Parenting Plan (Australia)

A Parenting Plan is a written agreement between separated or separating parents in Australia that sets out the arrangements for the care, welfare and development of their children. Unlike a parenting order made by a court, a Parenting Plan is a private document agreed upon by both parents and is recognised under section 63C of the Family Law Act 1975 (Cth) as a binding agreement that can guide the family's co-parenting arrangements without the need for court intervention. The Family Law Act 1975 (Cth) places the best interests of the child as the paramount consideration in all decisions relating to children, as stated in section 60CA. Section 60CC sets out the factors to be considered when determining what is in a child's best interests, including the benefit to the child of having a meaningful relationship with both parents, the need to protect the child from harm, the child's views and wishes, the nature of the child's relationship with each parent, the willingness of each parent to facilitate the other parent's involvement in the child's life, and any history of family violence or abuse. A well-drafted Parenting Plan addresses all of these considerations. Australia's family law system was significantly reformed by the Family Law Amendment Act 2023 (Cth), which came into effect in May 2024 and removed the presumption of equal shared parental responsibility that had previously applied under the old section 61DA. Under the current framework, there is no automatic presumption in favour of any particular arrangement. Instead, courts and parents alike must focus entirely on what arrangement best serves the individual child's needs and interests, assessed against the section 60CC factors. This makes it more important than ever for parents to set out their arrangements clearly in a Parenting Plan. A Parenting Plan covers several key areas of a child's life. Living arrangements specify where the child will primarily reside and how time is divided between the parents. The contact and communication schedule records how regularly the child spends time with each parent, including during school terms, school holidays, public holidays, special occasions such as birthdays and Christmas, and the specific handover times and locations. Decision-making provisions address how significant long-term decisions about the child's education, health, religion and extra-curricular activities will be made — whether jointly by both parents or primarily by one parent. The Parenting Plan should also address communication between the parents themselves, ensuring that information about the child's health, education and welfare is shared openly and promptly. International travel provisions are increasingly important and should specify the notice period required before a parent takes the child overseas and whether the other parent's written consent is required. Under Australian law, taking a child overseas without the other parent's consent may constitute international parental child abduction, which is a serious criminal offence. Relocation clauses protect both parents and the child by setting out what must happen before a parent moves to a new location that would significantly affect the existing arrangements. The Family Court of Australia (now part of the Federal Circuit and Family Court of Australia, or FCFCOA) has a developed body of case law on relocation matters, recognising the fundamental tension between a parent's right to move and the child's right to maintain a meaningful relationship with both parents. Dispute resolution provisions are essential. Under section 60I of the Family Law Act 1975 (Cth), parents are generally required to attend family dispute resolution (FDR) before applying to the court for a parenting order, except in cases involving urgency, family violence or child abuse. Specifying mediation or FDR as the first step in resolving disagreements about the Plan ensures compliance with this requirement and encourages resolution without the cost and emotional toll of litigation. A Parenting Plan is a practical, flexible and child-centred document that enables parents to take responsibility for their children's welfare without placing that responsibility in the hands of a court. It can be updated as the child grows and circumstances change, making it the preferred starting point for most separating Australian families.

Last Will and Testament (Australia)

Create a legally-informed Australian Last Will and Testament that complies with the Succession Act of your state or territory. Appoint an Executor, name beneficiaries, make specific bequests, nominate a guardian for minor children, and optionally create a testamentary trust for tax-effective wealth transfer. Includes mandatory two-witness execution requirements under NSW Succession Act 2006, VIC Wills Act 1997, QLD Succession Act 1981, and equivalent legislation across all Australian states and territories.

Cohabitation Agreement (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.