It’s not unusual for de facto couples to get married after they’ve been living together for a while. In this case, they want to know whether their cohabitation agreement will suffice, or if they will need to enter into another agreement (usually a pre nuptial or post nuptial agreement).
Essentially, a de facto agreement and a prenuptial or post nuptial agreement are not the same thing. Even though de facto couples and married couples have essentially the same rights, the Family Law Act deals with married and de facto couples separately, under different sections of the Act. This means that you cannot rely on a de facto agreement if you later marry. You will come under Part VIIIA for married couples (rather than Part VIIIAB for de facto couples).
You do, however, have the option to enter into a new agreement that will cover the marriage relationship. This also gives a couple the opportunity to review any prior de facto agreement, particularly in light of changes (or anticipated changes) to the relationship, such as the arrival of children and the resulting change to the relationship dynamics. In any event, it is recommended that you review your financial agreement regularly, regardless of a change in status of the relationship.
When considering whether to make a de facto or marriage financial agreement, there are a two important factors to consider. The first is that a cohabitation or de facto agreement deals with what should happen if the de facto relationship breaks down. If the couple marries, the de facto relationship has not broken down, making the de facto agreement void. It simply ceases to be applicable.
The second factor is a reversal of the first, in that a pre nup agreement (being a pre marriage agreement made under the marriage provisions of the Act), will offer no protection if you are currently in a de facto relationship and you separate before the marriage actually takes place. That is, if you’re planning on getting married, and are currently living together in a de facto relationship, you need to be aware that a pre nup agreement (pre marriage agreement) will only come into effect once the marriage takes place. So making a pre nup with the intention that it will also protect you during the course of your de facto relationship prior to the wedding, is not accurate.