De Facto Binding Financial Agreement (Applicant) - Western Australia - Post-Separation Agreement (s 205ZP) - Limitation Trap and s 205ZS Compliance

What is the time limit for WA de facto property claims if the agreement fails?: A property or maintenance application may be made within 2 years after the relationship ended, within 12 months after a financial agreement is set aside or found invalid, or with both partners' consent (s 205ZB(1)). Otherwise the court's leave is needed, and it is granted only if hardship would be caused to a partner or a child (s 205ZB(2)).

When is a post-separation agreement binding?: When both parties sign it, each party's statement of independent legal advice on its effect and its advantages and disadvantages is certified in an annexure with the adviser's signed certificate, it has not been terminated or set aside, and after signing the original is given to one party and a copy to the other (s 205ZS(1)). It can be set aside only on the grounds in s 205ZV(1).

Jurisdiction: Family Court of Western Australia, under Part 5A of the Family Court Act 1997 (WA), with any superannuation provisions operating under Part VIIIC of the Family Law Act 1975 (Cth).

The Process at a Glance: Record the date the relationship ended and the date the 2-year period expires. Advise on the choice between consent orders and a financial agreement. Exchange full disclosure and value the assets, draft the agreement expressed to be made under s 205ZP, and arrange independent advice for each party. Prepare any separation declaration the superannuation provisions need, run the final s 205ZS check, have both parties sign, and give the original to one party and a copy to the other.

Key Legislation: Family Court Act 1997 (WA) ss 205ZB, 205ZP, 205ZPA, 205ZPB, 205ZS and 205ZV; Family Law Act 1975 (Cth) ss 90YK and 90YU.

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