Our Family Lawyers have experience and knowledge in advising, preparing and drafting Financial Agreements before, during, and after a marriage or de facto relationship. Contact us to simplify the process!
What is a Financial Agreement?
Financial Agreements were introduced in December 2000. Since this time individuals can choose to opt of the family court system and instead enter into private agreements that deal with all their property and maintenance needs.
Financial Agreements can be made before a marriage or de facto relationship, during the marriage or de facto relationship and after the end of a marriage or de facto relationship.
The only time the Court may be involved if one person seeks to set-aside or challenge the financial agreement.
What is a Financial Agreement/Pre-Nup?
A pre-nup is a financial agreement that is made between a couple before they get married or whilst they are living together as a de facto couple.
The pre-nup sets out their rights, entitlements and obligations relating to property and maintenance in the event that the relationship ends in divorce or separation.
Do I need a Lawyer for a Financial Agreement?
To have a legally binding financial agreement each person must be independently advised by a family lawyer who practices in Australia (not overseas).
The family lawyer is required to provide a certificate stating that they have advised their client on the advantages and disadvantages of the financial agreement and further of the effects on the rights, entitlements and obligations of their client.
Are Financial Agreement enforceable in Australia?
A Financial Agreement is legally binding if it complies with the legal requirements of the Family Law Act 1975 (Cth) and principles founded in case law are met.
1. The Agreement has been signed by all parties involved.
2. Before both the parties sign the agreement, you both must seek and have been provided with independent legal advice on the legal implications of the agreement. The legal advice should also include the advantages and disadvantages to the respective party, at the time the agreement was being signed.
3. Each party is then given a certificate of independent legal advice by their respective lawyer, confirming that the party received independent advice on what the effects of the agreement would be for them.
4. The agreement has to be valid and not been set aside or terminated by the court.
If you need assistance drafting or reviewing your financial agreement then you should speak to one of our specialist family lawyers.
Why would my Financial Agreement be set aside?
There are a number of reasons for having a Financial Agreement set aside:
1. Fairness is not a reason to set aside the financial agreement.
2. Inadequate or no disclosure of all the assets and liabilities owned by you or your partner.
3. The provision of inaccurate estimates of the value of assets owned by you or your partner.
4. The Agreement does not meet the requirements of the family Law Act 1975 (Cth).
5.If you feel that you were pressured or bullied into signing and not given sufficient time to consider the Agreement.
6. You did not receive independent legal advice.
General Information – Property Division & Disputes
As our society is ageing and as it is more and more common to have second and third marriages and de facto relationships, it is understandable that many people are looking for ways to protect their property from any potential break ups in the future.
Financial Agreements can be made in contemplation of marriage or de facto relationship or during a marriage or de facto relationship or after the marriage or de facto relationship has ended.
A financial agreement is a private agreement which is agreed to by both you and your partner.
Financial agreements can deal with all property, including superannuation, financial resources and / or maintenance of the parties and children. They do not however, deal with child custody matters.
The main advantage of a financial agreement is that it requires no court appearance and no approval from the court. Indeed, the purpose of the financial agreement is to exclude the court, with some very few exceptions.
Further a financial agreement is effective upon signing the document by both parties, and as such there are no court delays, court costs or adhering to court timetables.
The main disadvantage of entering into a financial agreement is that the agreement does not have an independent third party, usually the Registrar of the Family Court of Australia, reviewing the agreement, as is the case with consent orders which are filed at the Family Court.
It is extremely important that if you are entering a financial agreement, that you fully understand the terms of the agreement and the effect of the agreement on your financial position and circumstances.
Once you sign the financial agreement, they are final.
It is often very difficult to terminate them, without the consent of the other party. There are limited circumstances where the court will consider setting aside a financial agreement that was entered after consideration and consent of the parties.
Entering into a financial Agreement is a very serious matter and one that requires that you and your partner each receive independent legal advice.
If you require further information about this complex area of family law, contact us to speak to a family lawyer.