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Financial Agreements

If you would like to protect your finances in the event of a marriage or de facto relationship breakdown, you and your partner can agree to enter a binding financial agreement. Under the Family Law Act 1975, you can enter a financial agreement before, during, or after the end of your relationship.

It is essential to obtain expert legal advice before entering into any financial contract. A relationship breakdown is a difficult time for all parties involved, and dealing with financial matters or spousal maintenance during this turbulent time can be emotionally draining. Honan Family Law is here to help you navigate your financial entitlements by providing clear and compassionate tailored advice to your individual circumstances.

What is the purpose of a financial agreement?

Financial agreements are put in place to prevent the Courts from interfering in any arrangements made regarding property settlement or financial or spousal maintenance in the event of, or following, separation.

As long as the financial agreement complies with the legislative requirements, you can make arrangements that suit your unique circumstances. Experienced family lawyers can advise on the fairness and appropriateness of the agreement. 

Why do I need a financial agreement? 

Several circumstances exist that may make a financial agreement beneficial to you. Financial agreements:

  • provide security in the event of separation, with terms already set out regarding property settlement and other financial or spousal maintenance;
  • allow for a more peaceful and amicable separation with both you and your ex-partner aware of the terms of division;
  • preserve an existing or expected inheritance;
  • protect the interests of children from former relationships, in the case of a second marriage or relationship.

Legal support for financial agreements

As family law specialists, Honan Family Law can provide expert advice on the fairness and appropriateness of your financial agreement. We review your personal circumstances both now and for the future to ensure you can achieve a peaceful and quick separation, so you can begin to move on with your life. 

Everything you need to know about financial agreements

To be legally binding and therefore enforceable, you and your ex-partner will both need to obtain independent legal advice. Financial agreements are not approved or checked by the Courts so it is essential you understand how the agreement impacts you and your current or future personal situation.

Section 90G(1) (for married couples) and section 90UJ (for de facto couples) of the Family Law Act sets out what must be covered in a Financial Agreement in order for it to be binding:

  1. The Agreement must be in writing and signed by all parties.
  2. Before signing the Agreement, each party must be provided with independent legal advice from a legal practitioner regarding the effects of the Agreement, the rights of the party, the advantages and disadvantages at the time the advice was provided to that party of making the Agreement.
  3. Either before or after signing the Agreement, each party is provided with a signed statement by the legal practitioner stating that the advice referred to above was provided to that party (whether or not that statement is annexed to the Agreement).
  4. A copy of the statement referred to above was provided to the party and given to the other party, or a legal practitioner acting for the other party.
  5. The Agreement has not been terminated or set aside by a Court.
Financial Agreements may be set aside in the following circumstances:-
  1. If there has not been substantial adherence to the formal requirements for financial agreements set out in the Family Law Act.
  2. If the agreement was obtained by fraud, including non-disclosure of a material matter.
  3. If a party entered into the agreement for the purpose of defrauding or defeating a creditor or creditors of the party or with reckless disregard of the interests of a creditor or creditors. 
  4. If the Agreement is found to be void, voidable or unenforceable. This could arise due to:
    • Misrepresentation. This could make a Contract voidable if the representor has made a misrepresentation of fact which induced the representee to enter into the Contract. 
    • Mistake. Where one party is aware of a serious mistake in relation to a fundamental term in the contents of the agreement but deliberately doesn’t inform the other party.
    • Duress. A Financial Agreement might be voidable on the grounds of duress if one of the parties has induced the other to enter into the Contract as a result of illegitimate pressure.  
    • Undue Influence. This occurs where there is use of influence by one person over another for the benefit of a dominant party or a third party.
  5. Unconscionability. The key elements of this concept are that one party is under a special disability such as to render them unequal to the other contracting party. Unconscionability looks at the conduct of the stronger party in dealing with a person under a special disability in circumstances where it would be inequitable for them to enter an Agreement. What constitutes special disability may include poverty, need of any kind, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where such explanation was necessary.
  6. If circumstances have arisen, since the Agreement was made rendering it impracticable for the Agreement, or part of the Agreement to be carried out.
  7. If, since the Agreement was made, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child) and, as a result of that change, the child (or the child’s primary carer) will suffer.

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