S90UC Family Law Act

Under the s90UC Family Law Act, de facto partners can make a binding financial agreement while they are still in a de facto relationship.

This agreement sets out how property, financial resources, and, in some cases, spousal maintenance will be dealt with if the relationship ends. It allows de facto couples to plan and decide in advance how their finances will be divided on separation.

Key takeaway 🔑: S90UC gives de facto partners a way to record a binding financial plan for what happens if they later separate.

What Is a S90UC Financial Agreement?

A s90UC financial agreement is a written contract between two people who are in a de facto relationship. It sits within the part of the legislation that deals with de facto relationships and lets the couple record how they want their property and financial resources to be divided if they split up.

It can operate much like a “pre-nup” for de facto partners. The agreement can specify:

• Which assets remain separate
• Which assets form part of a shared pool
• How the shared pool will be divided
• Whether either person will receive spousal maintenance, and on what terms

Once properly prepared and binding, a s90UC agreement usually prevents the court from later making different property settlement or maintenance orders, except in limited circumstances where the agreement can be set aside.

Key takeaway 🔑: A s90UC agreement sets clear rules for property and maintenance if a de facto relationship breaks down.

Who Can Use a S90UC Agreement and When?

S90UC applies to couples who are already in a de facto relationship and want to put a financial agreement in place while they are still together. A de facto relationship generally involves two people living together on a genuine domestic basis as a couple, without being married to each other.

There are different sections for different stages of a relationship. Other provisions cover agreements before entering a de facto relationship, after separation, and similar agreements for married couples. S90UC specifically covers the “during de facto relationship” stage.

Some de facto couples who plan to marry later may use a s90UC agreement for the de facto period and then make a separate agreement under the marriage provisions.

Key takeaway 🔑: S90UC is designed for people already in a de facto relationship who want to formalise their financial arrangements during that relationship.

What Can a S90UC Financial Agreement Cover?

A s90UC financial agreement can deal with most financial aspects of the relationship, both now and if the couple separates. Common topics include:

• How existing property will be treated if the relationship ends
• How future property acquired during the relationship will be divided
• How superannuation interests will be dealt with
• Whether spousal maintenance will be payable, and for how long
• How particular assets, such as a business, family home, investments, or inheritances, will be handled

The agreement can also use different scenarios. For example, it might outline one division if the relationship ends within a short period and a different division if the couple has been together for many years or has children.

Key takeaway 🔑: S90UC agreements are flexible and can be tailored to fit the couple’s asset structure and future plans.

Requirements for a Binding S90UC Agreement

For a s90UC financial agreement to be binding, it must comply with strict formal requirements. Generally, this includes:

• The agreement is in writing and signed by both parties.
• Each party receives independent legal advice from an Australian legal practitioner about the effect of the agreement and the advantages and disadvantages of entering it.
• Each lawyer provides a signed statement confirming that advice, and the parties exchange those statements.
• The agreement has not been terminated or set aside by a court.

If these requirements are not met, the agreement may not be enforceable, and the court could still make its own property or maintenance orders.

Key takeaway 🔑: Independent legal advice and correct documentation are mandatory for a s90UC agreement to be binding.

When Can a Court Set Aside a S90UC Agreement?

Even if a s90UC agreement appears binding, the court can set it aside in limited circumstances, such as where:

• There was fraud or failure to disclose assets
• The agreement is void, voidable, or unenforceable under general contract law
• It has become impracticable to carry out the agreement
• A significant change in circumstances relating to a child will cause hardship if the agreement stands
• One party engaged in unconscionable conduct or took unfair advantage of the other

If a s90UC agreement is set aside, the court can then determine property settlement and maintenance as if the agreement had never been made.

Key takeaway 🔑: A well-drafted s90UC agreement is generally upheld, but the court can override it in cases of serious unfairness, fraud, or major change in circumstances.

Getting Advice About S90UC Family Law Act Agreements

S90UC agreements can offer certainty and protection, but they are technical documents with long-term consequences.

Before signing, both parties should understand how the agreement affects their rights now and in the future. A practitioner experienced in family property matters can help identify relevant assets, draft or review terms, and explain how the agreement interacts with other options, such as consent orders.

Key takeaway 🔑: Tailored legal advice helps ensure a s90UC agreement is workable, fair, and enforceable, and supports a sound financial plan for your de facto relationship.