Financial agreements are a common document that lawyers prepare for clients to divide assets before they enter into a long-term relationship or after the parties separate.
Under the Family Law Act 1975 married and de facto couples can make legally enforceable financial agreements addressing how, in the event of their separation, their joint and separate property is to be divided between them as well as ongoing spousal maintenance and other issues.
Financial agreements can be made before, during or at the end of the relationship.
Financial agreements made before are marriage are often called "pre-nuptial" or "pre-nup" agreements.
Financial agreements enable couples to come to a legally binding agreement without the courts intervening.
Unlike consent orders, financial agreements are not filed with a court. We normally recommend consent orders to document an agreement between separating spouse but binding financial agreements are used in certain circumstances. We advise our clients about the advantages and disadvantages of each option in the course of their matter.
Financial agreements are presently the only option available to couples wishing to achieve future certainty about financial arrangements if and when they separate - they are in essence an "insurance policy" against the usual impacts of separation. While they are not "iron clad", they offer the best chance of reducing the scope for uncertainty and expensive litigation at the conclusion of a relationship.
Generally, for a financial agreement to be binding on the parties:
- the agreement must be in writing and signed by all parties
- the parties must have received independent legal advice about specific issues specified in the Family Law Act
- lawyers acting for each party must sign statements confirming that specific advice was given
- the statements of legal advice must be exchanged
- the agreement must not have been terminated or set aside by a court.
In some cases we act for clients seeking to terminate/set aside a financial agreement in circumstances where:
- there was a fraud (dishonesty)
- the agreement is not practical to carry out
- there is a major change in the children's care and welfare
- the other party has acted in an "unconscioable" (unethical or unfair) way.
Our lawyers are experienced in preparing, negotiating and advising clients in relation to financial agreements.
Call us on 08 8523 8400 for a no obligation consultation or email us at email@example.com.