“I signed an Agreement years ago when I moved in with my de facto partner. Is it still binding?”

Section 87 of the Commonwealth Law relates to agreements made by parties prior to the commencement of the amendments to the Family Law Act in 2009.

Section 87 (1) reads as follows :

This item applies if:

(a)  before commencement, 2 people (the couple) who were contemplating entering into a de facto relationship with each other made a written agreement, signed by both of them, with respect to any of the eligible agreed matters; and

(b)  the agreement was made under a preserved law of an earlier participating jurisdiction; and

(c)  a court could not, because of the preserved law, make an order under that law that is inconsistent with the agreement with respect to any of the eligible agreed matters; and

(d)  immediately before commencement:
       (i)  the agreement was in force under the preserved law; and
       (ii)  if the couple had entered into the de facto relationship–the de facto relationship had not broken down; and
       (iii)  the couple were not married to each other.”

A ‘preserved law’ is defined in section 85 of the Commonwealth Law as a law relating to financial matters of the State or Territory relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships.

Section 87 goes on to state that, as long as any agreement meets the criteria set out in section 87 above, then it will be treated as a Binding Financial Agreement under section 90UB (1).

Section 88 of the Commonwealth Law repeats similar provisions for agreements made during relationships, rather than before.

Part IX of the Property Law Act provided no avenue or criteria for agreements signed by parties in contemplation of a de facto relationship to be binding. The Court was given the discretion to give such weight to an Agreement as was considered appropriate. It is therefore uncertain whether a pre-2009 agreement, executed with all the necessary formalities of contract law, but not complying with Financial Agreement requirements, will be considered binding or simply as relevant.

It is certainly possible that, through this section, there is an avenue for an Agreement pre-dating the commencement of this legislation to be held as valid even though the agreement does not comply with the strict requirements of the current law regarding Binding Financial Agreements. There has yet to be serious consideration of such an agreement, but it must be anticipated that the Court, in any ‘informal’ agreement, will search carefully for any example of fraud or duress, particularly in situations where a party was not represented.

The above is general advice and we suggest that you talk to a lawyer in relation to your particular situation.