Formalising an agreement to divide assets with your partner can be daunting. We at Chua Tan Associates can take away much of the stress involved by providing you with expert advice. Request an appointment from our friendly lawyers.
For a financial agreement to be binding, it has to meet a number of strict, formal and substantive requirements under Part VIIIA or Part VIIIAB (where applicable) of the Family Law Act. Different rules apply based on a number of factors unique to each relationship. For example, section 90G(1) of the Family Law Act applies to financial agreements made before, during or after a marriage whilst section 90UJ(1) applies to agreements made before, during or after a de facto relationship.
In addition, section 90E of Family Law Act explains how spousal or child maintenance terms in a financial agreement will be void unless it specifies the party and/or children who the maintenance term refers to and specifies the amount of maintenance provided for, i.e. the contract has to be certain. Consequently, if a partner to a relationship was to later apply to the Court for spousal maintenance of an amount greater than in the financial agreement, the financial agreement must state the amount that party would be provided for in the agreement for maintenance for it to be binding.
However, with law, there are always exceptions to rules, and so there are also exceptions to make financial agreements not binding. If the technical requirements for a binding financial agreement are not met, it is possible for the Family Court to overturn the agreement and/or nullify it. Nevertheless, there are rules which make such agreements binding, including:
1. The parties are entering into financial agreements voluntarily and free from duress, undue influence or unconscionable conduct.
2. Each party’s lawyer must provide independent legal advice about:
2.1. The consequences on their rights under the financial agreement as opposed to the Family Law Act as a result of entering the Agreement; and
2.2. The advantages and disadvantages of entering into the agreement at the time the parties receive the advice and sign the agreement.
3. Each party is given a copy of a signed statement by their lawyer stating that the above advice was given to them.
4. Each party or their lawyer is given a copy of a signed statement by the other party’s lawyer.
5. Both parties sign it.
6. It is not overturned or set aside by the Court.
The family law team at Chua Tan Associates are experienced and are practical in our approach. If you want to enter into a financial agreement, please contact us on 03 9602 3988.
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