Denise Maxwell, Solicitor - Gay and Lesbian Law online

Separation 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 separation agreement?
A separation agreement is made if your relationship has ended or in the process of ending. The agreement records what you have agreed about the division of the total pool of assets, liabilities and financial resources of both of you

What is the difference between a cohabitation agreement & a separation agreement?
A cohabitation agreement is usually more general because it covers a situation that may arise in the future and property that may be bought in the future. A separation agreement deals with the specific property and financial resources of both partners, whether owned in both names or in separate names.

What property is included in the property to be divided if your relationship breaks down?

All jointly owned assets;
All jointly owed debts;
All assets owned separately (and whether or not they were owned before your relationship started);
All debts owed separately (and whether or not they were owned before your relationship started).

How should we work out how to divide our property?
This is not a simple issue and very much depends on your individual circumstances. In general terms the law takes account of the following issues:

What assets and liabilities each of you brought into the relationship at the start of the relationship;
What you each contributed during your relationship (this includes direct and indirect financial and non-financial contributions);
Whether either of you has the care of a child, including a child of your relationship;
Whether circumstances during your relationship have affected the earning capacity of either of you.
What financial resources you each have (in particular this includes your superannuation entitlements).
How you have conducted the financial aspects of your relationship (for example whether you had joint bank accounts, how you met the payment of bills and household expenses)

Before finalising any agreement about the division of your property, I recommend you get independent legal advice to make sure the division is fair within the terms of the law.

Why should we do a separation agreement?
A separation agreement records in writing the agreement you have reached about the division of property as a result of the breakdown of your relationship. If the agreement complies with the legal requirements of a "recognised agreement" you will have the certainty that it would be very difficult for your ex-partner to make a claim against you later on. To be a "recognised agreement" the separation agreement must:

Be in writing; and
Be signed by both of the defacto partners; and
Each defacto partner's signature must be witnessed by a Justice of the Peace (qualified) or Solicitor; and
Contain a statement of all significant property, financial resources and liabilities of each defacto spouse when the defacto spouse signs the Agreement.

I strongly recommend you have a solicitor prepare the separation agreement for you, to make sure the legal requirements are complied with.

Will & power of attorney
If you have separated from your partner you should immediately revoke any power of attorney given to your partner and make a new will.

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.