Kevin and Trembath

This matter came before the Family Court of Australia concerning a property dispute between Ms Kevin (the applicant) and Mr Trembath (the respondent), who had been in a de facto relationship. The parties sought consent orders for a property distribution, but these orders were contingent on the court determining the effect of a cohabitation agreement they had entered into on 1 September 2005 pursuant to Queensland’s *Property Law Act 1974*.

The court was required to determine whether the 2005 agreement constituted a binding financial agreement under the *Family Law Act 1975* (Cth), specifically a Part VIIIAB financial agreement, which would preclude the court from making property adjustment orders. The court also needed to consider the impact of the *Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008* (Cth) on the agreement.

Justice Murphy reasoned that the 2005 agreement, despite the parties' intention, was not a "recognised agreement" under the *Property Law Act 1974* because it was not witnessed by a solicitor or justice of the peace as required by that legislation. Consequently, it did not operate to prevent property adjustment orders under Queensland law. Furthermore, the court found that the agreement did not qualify as a Part VIIIAB financial agreement under the *Family Law Act 1975*, either by its express terms or through the transitional provisions of the 2008 amending Act. This was because the agreement did not meet the specific requirements for a Part VIIIAB financial agreement, particularly concerning its status under preserved state laws and its distinction between "cohabitation agreements" and "recognised agreements" under the Queensland Act.

As the 2005 agreement was not a binding Part VIIIAB financial agreement, it did not bar the court from making property adjustment orders. The court therefore made consent orders by which the parties’ property was distributed, reflecting a settlement considered just and equitable by both parties and the court. These orders included specific monetary payments and the transfer of certain assets, with provisions for confidentiality and the return of exhibits.