The fact that parties enter into an informal arrangement to divide their property does not preclude either party from applying for orders for property settlement under the provisions of the Family Law Act
An agreement concerning property, other than an agreement approved under the provisions of the Family Law Act will be considered as an indication of what the parties may have regarded as just and equitable at the time of the informal agreement, but its provisions will only be given effect if they coincide with an order which is just and equitable according to the provisions of s 79 of Family Law Act at the time of the hearing.
The court must determine the application on its merits having regard to the factors as set out in s 79(4) as they exist at the time of the hearing of the application under s 79 and according to the law in force at that time and not, as at the time the agreement was made. There is no threshold test, before embarking upon the s 79 exercise, to determine whether the earlier agreement was just and equitable at the time it was made according to the facts as they then existed and the law then in force.
In determining s 79 applications in circumstances where there has been an earlier agreement, it will often be necessary to consider the value of the parties' assets at the time of the agreement, their various contributions up to that time, and what might have been an appropriate s 75(2) adjustment. This consideration provides a background to the parties' understanding of what a just and equitable settlement at the time was. It is also necessary for the court to acquaint itself with changes in the composition and value of the property pool since the agreement, so that post-separation contributions can be assessed.