Can de facto partners create a prenuptial agreement?

Published 22 Dec 2017

Are you unmarried but still in a committed relationship with someone? If so, in the eyes of NSW law you are in a de facto partnership. These relationships are governed by the same rules around dividing possessions in the event of a break-up or death as marriage. Consequently, securing a prenuptial agreement is a good idea to ensure you and your partner are on the same page about what will happen to your assets if your relationship ends. 

What is a de facto relationship?

Under the Family Law Act 1975, a couple is considered to be in a de facto relationship if they are:

  • Not legally married to each other;
  • Unrelated by family; and
  • Live together as a 'genuine' couple on a regular basis.

Deciding if a relationship is genuine relies on the following factors determined in the Family Law Act:

  • Whether a sexual relationship exists or not. 
  • The degree of financial dependence or interdependence.
  • If either or both partners have children that live at the same residence in their care. 
  • The public reputation of the relationship. 

De facto relationships apply to both same-sex and opposite-sex couples and regardless of if one or both partners are married or in de facto relationships with other people.

What is a prenuptial agreement?

A prenuptial agreement, also known as a 'prenup', is a document that details the assets and debts of two parties that are entering a relationship. Although more regularly applied to marriage, prenuptial agreements can also be applied to de facto relationships. The agreement is binding and details how the couple's property will be dealt with in the event of their relationship coming to an end.

A prenuptial agreement is a good idea for those considering committing to a long-term pairing, especially for individuals who have had other de facto relationships in the past. The document provides a sense of security for both partners in its ability to determine from the outset how joint assets will be dealt with.

Can your prenuptial agreement be changed?

If the circumstances of your de facto relationship change, it is important to keep your prenuptial agreement updated to consider this new information. For example, if you move state you will need to check that your document isn't affected by any differences of law in your new state of residency.

Similarly, your prenup details will need to be re-negotiated if one or both of you encounters any significant life change that could affect your assets, like:

  • Winning a lottery;
  • Securing new employment; or
  • Developing a life-threatening illness.

Ensuring you and your partner are fully onboard with how your assets will be dealt with in the case of your de facto relationship ending is vital. Securing legal assistance is a sound idea - contact the Malouf Solicitors team to discuss your options.

Please call us on 02 8833 2000 to speak with a lawyer

I remain extremely grateful for Maloufs legal representation related to my financial management of the estate of my brother and for your continuing help and advice in this matter. As an aside, I always recommend Maloufs to my friends and family members who are seeking the best legal representation - only last week, I strongly advised a close family friend that their best interests would be served by arranging an appointment at your Parramatta offices.
John of Parramatta NSW

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