Moving in with a partner is exciting. But if you own property, have savings, or carry other assets into the relationship, it’s worth asking a practical question: what happens to what’s yours if things don’t work out?
A cohabitation agreement exists precisely to answer that question. For Queensland couples who are living together or planning to, this document can provide clarity, security, and peace of mind without putting a dampener on the relationship. Think of it as a prenup for people who are living together.
This guide explains what a cohabitation agreement is, how it works under Australian law, who it’s designed for, and what’s involved in getting one.
What is a cohabitation agreement?
A cohabitation agreement is a legally binding document that sets out how a couple’s finances and assets will be handled during their relationship and if it ends. It allows both parties to define what belongs to whom, quarantine assets from a shared pool, and agree in advance on how things would be divided if the relationship broke down.
Under Australian law, a cohabitation agreement is a type of Binding Financial Agreement (BFA) made under the Family Law Act 1975. This is the same federal legislation that governs property disputes for both married and de facto couples across Australia.
If your relationship has lasted at least two years, or if you have registered your relationship or have a child together, your partner may have legal rights to a share of your assets under that legislation. A cohabitation agreement can define those entitlements before any dispute arises.
How does a cohabitation agreement differ from other legal agreements?
Clients often arrive with questions about how a cohabitation agreement relates to a prenup or a BFA. These terms are connected, but they refer to different situations.
| Agreement Type | When It’s Made | Who It’s For
|
| Cohabitation Agreement (BFA for de facto couples) | Before or during a de facto relationship | Couples living together |
| Prenuptial Agreement (BFA before marriage) | Before marriage | Engaged couples |
| Post-Separation BFA | After separation | Separating couples |
A cohabitation agreement and a de facto financial agreement are often used interchangeably. Both refer to a BFA made between de facto partners. The key distinction from a prenup is timing and legal status: a cohabitation agreement applies to couples who are living together outside of marriage, while a prenup applies to couples who are engaged or about to marry.
All of these fall under the BFA framework in the Family Law Act, which is why the process and requirements are largely the same across all three types.
What can a cohabitation agreement cover?
A well-drafted cohabitation agreement can address a wide range of financial matters, including:
● Property owned before the relationship, and any capital growth it accumulates
● Contributions each party makes during the relationship, whether financial or otherwise
● How jointly acquired assets or debts would be divided
● Superannuation entitlements
● Income, savings, and investments
● Business interests
● Inherited wealth or gifts received during the relationship
For example, if you own an investment property worth $500,000 before moving in together, a cohabitation agreement can specify that this property, and any capital growth it generates, remains yours if you separate, rather than forming part of a shared asset pool. Without an agreement, that property could be subject to a property settlement claim under the Family Law Act.
Who should consider a cohabitation agreement?
A cohabitation agreement is not only for the very wealthy. It is worth considering for anyone who brings meaningful assets into a relationship, or who wants clarity about how finances will be managed.
People who commonly benefit from having one include those who:
● Own property or significant savings before the relationship begins
● Stand to inherit, or have already inherited, family wealth
● Have been through a property settlement before and want to protect what they’ve rebuilt
● Own a business or professional practice
● Have children from a previous relationship with estate planning considerations
● Are entering a relationship later in life with accumulated superannuation or a property portfolio
Age and life stage matter here. A couple in their twenties moving in together for the first time may have less to protect than a couple in their fifties entering a second relationship with adult children, a home, and a superannuation balance each. For older couples in particular, the intersection of relationship property and estate planning can be complex, and an agreement provides a framework that protects both parties and gives family members clarity.
Equally, many people who have experienced a difficult property settlement following a previous relationship choose to get a cohabitation agreement before starting again. Having been through that process once, they understand what the absence of a clear agreement can mean. If you are unsure what the property settlement process involves, it is worth understanding your rights and obligations before they become relevant.
What happens if you don’t have one?
If you separate from a de facto partner and there is no agreement in place, either party may apply to the Federal Circuit and Family Court of Australia for a property settlement. The court will consider factors including the length of the relationship, each party’s financial and non-financial contributions, and future needs.
This process can be costly, time-consuming, and emotionally draining. It can also produce outcomes that neither party anticipated, particularly where one person made career sacrifices or contributed in non-financial ways that are difficult to quantify. Understanding what factors contribute to the division of property can help illustrate why a clear agreement in advance is so valuable.
A cohabitation agreement removes that uncertainty. It allows both parties to agree on terms while the relationship is good, rather than leaving decisions to a court when it isn’t.
What’s involved in getting one?
Getting a cohabitation agreement done properly takes time and investment. Here is what the process typically involves.
Independent legal advice for both parties. This is a legal requirement, not optional. For a BFA to be binding, both parties must receive independent legal advice from their own solicitor before signing. This protects the integrity of the agreement and confirms that each party understood what they were agreeing to.
Full financial disclosure. Both parties must provide complete and honest disclosure of their financial position, including assets, liabilities, income, and superannuation. Incomplete or inaccurate disclosure is one of the most common grounds on which a BFA can later be challenged.
Negotiation and drafting. The parties need to reach agreement on what the document will say. A solicitor will then draft the agreement to reflect those terms accurately and in a way that is legally sound. This negotiation process takes time and involves the lawyers for both parties working together on your behalf.
Execution and certificates. Once both parties are satisfied with the document and have received their independent advice, the agreement is signed and witnessed. Each solicitor provides a signed certificate confirming that advice was given.
In terms of cost, the fees for a cohabitation agreement vary depending on asset complexity and the time involved in negotiations. As a general guide, total legal fees across both parties often range from around $3,000 to $10,000 or more for straightforward situations. Complex asset structures or protracted negotiations can increase that significantly. Your solicitor should be able to give you a more specific estimate based on your circumstances.
An agreement that grows with your relationship
A cohabitation agreement should not be treated as a set-and-forget document. Life changes, and an agreement that no longer reflects your circumstances may not hold up if challenged.
A good agreement will anticipate significant life events and set out how they would affect the arrangement.
These might include:
● One partner leaving the workforce to care for children. If this happens and the agreement doesn’t account for it, the document may be found to produce an unjust outcome. A well-drafted agreement should specify how a change in financial contribution affects the division of assets.
● A serious illness or disability that affects earning capacity
● Significant changes in asset values, such as a property that appreciates substantially
● Receiving an inheritance during the relationship
● Starting or selling a business
We recommend treating your cohabitation agreement as a living document and reviewing if your circumstances change materially. Keeping it current reduces the risk of it being set aside on the basis that it no longer reflects your situation.
Why can an agreement be challenged?
This is something worth understanding clearly, because it explains why the process matters as much as the document itself.
A BFA can be set aside by a court in certain circumstances, including:
● Failure by either party to obtain independent legal advice before signing
● Non-disclosure of assets or liabilities
● Evidence that one party signed under duress or as a result of unconscionable conduct
● The agreement becoming so outdated that applying it would cause a significant injustice
● The document itself being ambiguous or uncertain in its terms
This is why having properly qualified solicitors involved on both sides is not a formality. It is what makes the agreement durable. An agreement drafted without proper process is at real risk of failing at the exact moment you need it most.
Living together agreement lawyer: why professional advice is essential
A cohabitation agreement is not a document you should prepare without a solicitor, and it is not something where one lawyer representing both parties is appropriate. Each party needs independent representation so that their individual interests are protected and so that the agreement satisfies the requirements of the Family Law Act.
At Lander Solicitors, we assist couples with cohabitation agreements as part of our family law practice. We take the time to understand your situation, explain your options clearly, and draft an agreement that genuinely protects you, not just one that ticks a legal box.
If you are considering a cohabitation agreement or would like to understand whether one is appropriate for your situation, we welcome you to get in touch for a confidential conversation.
Is a cohabitation agreement worth it?
The cost and time involved in getting a cohabitation agreement is real. So is the cost of not having one.
For couples with a significant asset pool, particularly where one or both parties own property, have superannuation, or stand to inherit, the protection an agreement provides is generally worth far more than the legal fees involved.
For couples with fewer assets, the answer may depend on your individual circumstances. A conversation with a family lawyer will help you assess whether the investment is justified for your situation. You may also find it helpful to explore our dedicated page on cohabitation agreements for new couples for more detail on how we approach this service.
Talking to your partner about it
One of the most common hesitations people have is not about the legal process. It is about how to raise the subject with a partner without it feeling like a vote of no confidence in the relationship.
It helps to reframe the conversation. A cohabitation agreement is not about planning for failure. It is about making a clear-eyed, mature decision together, in the same way you might set up a joint account, agree on how to split bills, or discuss how you would handle a major financial decision as a couple. It is a financial planning exercise, not an ultimatum.
Some couples find it useful to approach it as something they are doing together, rather than something one partner is asking of the other. When both parties understand that the document is designed to protect each of them, and not just the person who raised it, the conversation often becomes much easier.
If you already have a financial adviser, raising it in that context can also help. The agreement can sit alongside other financial planning steps you are taking as a couple. If separation ever does become a reality down the track, understanding the first steps to take after deciding to separate can also provide useful context for why having clear financial arrangements in place from the outset matters.
Frequently asked questions
Yes, provided it meets the requirements of the Family Law Act 1975. Both parties must have received independent legal advice before signing, there must have been full financial disclosure, and the document must have been signed and witnessed correctly. A properly prepared agreement is legally binding and can be relied upon if a property dispute arises.
The timeline varies depending on how quickly both parties can provide their financial information, how much negotiation is required, and how promptly each solicitor can complete their review. In straightforward cases, the process can take four to eight weeks. More complex situations may take longer.
The earlier the better. A cohabitation agreement is easiest to prepare before you move in together, when both parties still have clearly separate financial positions. That said, an agreement can be made at any point during a de facto relationship, though the process may become more complex once finances are already intertwined.
The terms are often used interchangeably. Both refer to a Binding Financial Agreement made between de facto partners under the Family Law Act. Some solicitors use “cohabitation agreement” to describe an agreement made before or at the start of the relationship, and “de facto agreement” more broadly, but the legal document is the same type.
Yes. This is a legal requirement for the agreement to be binding. Each party must obtain independent legal advice from their own solicitor. Using the same lawyer is not permitted.
A cohabitation agreement is one of the more practical steps two people can take before or early in a relationship. It is not pessimistic. It is the kind of clarity that allows both people to move forward with confidence.
If you have questions about whether a cohabitation agreement is right for your situation, contact Lander Solicitors to speak with a Queensland family lawyer.
