Financial Agreements

There are provisions in the Family Law Act which allow the parties to a marriage to reach agreement about how their matrimonial property will be divided in the event of separation; such agreements are called financial agreements. According to the provisions of the Family Law Act the parties can enter into a financial agreement before during or after the marriage. Financial Agreements that are entered into prior to marriage are more commonly known as prenuptial agreements.

A financial agreement can deal with the following matters:

1. All or any of the property or financial resources owned by either party;

2. The maintenance to be paid by one spouse to the other after the marriage has ended;

3. The splitting of superannuation entitlements; and

4. Other matters incidental to your financial affairs;

There are certain criteria that must be met for an agreement to constitute a financial agreement under the Family Law Act and therefore be binding on the parties:

1. The Agreement must be signed by both parties;

2. The Agreement must contain, in relation to each party, a statement to the effect that the party to whom the statement relates has been provided, before the Agreement was signed by him or her, with independent legal advice from a legal practitioner as to the following matters:

a) The effect of the Agreement on the rights of both parties;

b) Whether or not at that time when the advice was provided it was to the

advantage financially or otherwise of that party to make the Agreement.

3. The agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided;

4. The Agreement must not have been set aside by a Court; and

5. After the Agreement is signed the original Agreement is given to one of the parties and a copy is given to the other.

If the Agreement satisfies all of the above criteria, then it is known as a Binding Financial Agreement.

In certain circumstances a court can make an order to set aside a binding financial agreement if one of the following criteria has been met:

At any time the parties can terminate a financial agreement by entering into a formal termination agreement. A termination agreement must comply with the same formalities as a Binding Financial Agreement.