Denise Maxwell, Solicitor - Gay and Lesbian Law online

Cohabitation Agreements

Queensland laws cover how property is to be divided when a defacto relationship breaks down. The laws include same sex defacto relationships. For the laws to apply, you must have lived together for a minimum of two years or meet the exceptions to this requirement set out in the laws. The laws set out the matters to be taken into account by a court (and solicitors) in deciding how property should be divided if a defacto relationship breaks down. The laws are similar to those that apply when a marriage breaks down. The laws specifically allow people in defacto relationships to agree between themselves how they would like their property divided if their relationship breaks down in the future. Their agreement can be recorded in a cohabitation agreement. If the defacto relationship has ended or is in the process of ending, you can agree on how property is to be divided and record that in a separation agreement.

What is a cohabitation agreement?
A cohabitation agreement is a legal document that records your agreement about your ownership of property with another person. Most commonly these agreements are made when people buy a house together. Cohabitation agreements are not restricted to houses and can also include personal possessions, furniture, cars, or even joint debts. Cohabitation agreements can be given effect by a court if your relationship breaks down. There are exceptions, for example where there has been a significant change in circumstances since the agreement was made.

When should I make a cohabitation agreement?
You can make a cohabitation agreement at any time, particularly when you are buying property together. If you already own property, there is no difficulty with making a cohabitation agreement after the event.

What sorts of things might I include in a cohabitation agreement?
You can tailor a cohabitation agreement to suit you and your partner's requirements. The agreement records how you intend to deal with financial matters in your relationship and how you intend to divide your property if your relationship breaks down. The agreement must comply with requirements prescribed by law. In particular, the agreement must include the assets and liabilities of each of you. The types of things which might be included in a cohabitation agreement include:

what property you each owned at the start of your relationship;
your respective contributions to buying any jointly owned property;
how you both intend to contribute to ongoing expenses, including mortgage payments
your agreement about the percentage share each of you will have in the property
if you own the property in unequal shares, whether the person with the smaller share is able to increase their share and how
how ongoing expenses and mortgage payments will be paid if you break up
what will happen to the property if you break up - will it be sold, or will you each have the option of buying out the other?
if the property is to be sold, the process for selling the property
how the sale proceeds are to be divided
allowing for a mediation process if you are in dispute.

As long as a cohabitation agreement meets the legal requirements, it can be as specific or as broad as you choose for your circumstances.

What is appropriate to be included in your cohabitation agreement depends very much on your individual circumstances. Your cohabitation agreement should be prepared by a lawyer to make sure it meets your needs and complies with the legal requirements.

Wills & powers of attorney
When making a cohabitation agreement you might also consider whether you should make a will, whether your will needs updating and whether you should grant an enduring power of attorney.

This Information Sheet provides information on the law in Queensland, Australia. If you are seeking information about the law in another state, territory or country, please contact a lawyer in that state, territory or country.

This is an information brochure only. It is intended to provide general information about the subject but is not intended to provide comprehensive legal advice. If you have a particular legal issue or want advice on a particular matter please make an appointment to see me.