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Cohabitation agreement under Property Law Act 1974 QLD not recognised

Property – Cohabitation agreement under Property Law Act 1974 (Qld) was not a recognised agreement or financial agreement – Nor a bar to consent orders

n Kevin & Trembath [2012] FamCA 807 (11 September 2012) the parties sought property orders by consent under the Family Law Act 1975 in circumstances where they had entered into a cohabitation agreement during their de facto relationship under Part 19 of the Property Law Act 1974 (Qld). Included in those orders was a declaration sought by the parties that their cohabitation agreement did not bind them. Murphy J said at paras 5-9:

“On 1 September 2005, the parties signed the agreement earlier referred to. That agreement was made pursuant to the PLA. At that time that legislation governed the rights of parties to de facto relationships in this State.

The agreement, by its terms and by reference to the stated intention of each of the parties, was intended to be a ‘recognised agreement’ within the meaning of that legislation [s 266 PLA]. The legislation distinguishes between agreements of that type and ‘cohabitation agreements’ [s 264 PLA]. It is only agreements of the former type that preclude property adjustment orders pursuant to that legislation being made.

Contrary to the requirements of the legislation [s 266(1)(b) PLA] the agreement was not witnessed by a solicitor or justice of the peace; rather it was witnessed by the parties’ then cleaning lady.

In terms, the relevant section would indicate that the agreement is, as a result, not a ‘recognised agreement’ for the purposes of the legislation. Counsel helpfully provided a decision of the Chief Justice of Queensland in Tighe v Commissioner of State Revenue [2008] QSC 30 which confirms that a reading of the section in those terms, is consistent with authority.

It is, then, common ground that, despite the intentions of the parties and the terms of the agreement, the agreement as made between them is not a ‘recognised agreement’ within the meaning of the PLA.”

Murphy J proceeded to hold that the Court had jurisdiction to hear and determine the application, finding that the parties were in a “de facto relationship” within the meaning of the FLA; the relief sought was a “de facto financial cause”; the relationship was for at least two years; both parties were ordinarily resident in Queensland when the relationship broke down; Queensland was a “participating jurisdiction” for the purpose of s 90SK(1) FLA; the relationship broke down after 1 March 2009; and that Queensland had referred its relevant powers to the Commonwealth.

Murphy J continued at paras 14-25:

“This Court cannot, relevantly, make orders for the alteration of property interests in a de facto financial cause, if there exists between the parties a ‘Part VIIIAB financial agreement’ that is binding upon the parties (s 90SA).

A ‘Part VIIIAB financial agreement’ is defined in the Act (s 4). Relevantly, the instant agreement is not an agreement made pursuant to s 90UB or s 90UC, because it is not an agreement ‘expressed to be made under [that] section’ (s 90UB(1)(c) and s 90UC(1)(c)).

Although made under State law, the instant agreement is also not an agreement ‘covered by s 90UE’ because it is not made ‘…under a law of a non-referring State’ (s 90UE(1)(b)).

Accordingly, if the agreement is to be a ‘Part VIIIAB Agreement’ for the purposes of the application of the Act and, specifically, for the purposes of the application of s 90SA of the Act, it must be by reference to a legislative provision not contained within Part VIIIAB of the Act.

Part VIIIAB was inserted by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (No. 115 of 2008). That Act contained transitional provisions relevant to the instant issue. Item 88 of that Act provides for an agreement of the instant type, namely ‘pre-commencement agreements … made during de facto relationships’.

Yet, while the agreement was made ‘ … under a preserved law of an earlier participating jurisdiction’ within the meaning of that Item, the instant agreement does not satisfy the requirement in item 88(1)(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 … ’

The subsection is not satisfied because the PLA distinguishes between ‘cohabitation agreements’ and ‘recognised agreements’ (see, ss 264-266 of the PLA). It is only agreements of the latter type which meet the requirement just quoted (see, s 274 of the PLA). ‘Cohabitation agreements’ had a different impact upon property adjustment proceedings under the Queensland Act (see, s 277 of the PLA).

Accordingly, the instant agreement is not a ‘Part VIIIAB Agreement’ within the meaning of the Act, and there is no ‘binding Part VIIIAB Agreement’ for the purposes of section 90SA of the Act.

As a result, the agreement signed by the parties is not a bar to the relief sought by the applicant, and, of course, is not a bar to the making of the consent orders for adjustment of property.

It is in those circumstances that the parties seek the declarations contained in paragraph 1 of the draft minutes of order … ’

The declarations are to the effect that the agreement signed by the parties, to which I have referred, is not a recognised agreement within the meaning of s 266 of the PLA and is not taken to be a Part VIIIAB financial agreement within the meaning of s 88(1)(d) of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008.

By reason of all of the matters just referred to, it seems to me that the declaration sought by the parties by agreement is appropriate and ought be made.”

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