Financial Binding Agreements

A financial agreement outlines the parties’ agreement as to their financial arrangements. Financial Agreements are intended to avoid the need for the parties to go to court in respect of property matters.

A Financial Binding Agreement may also include the parties’ agreement on other issues such as maintenance, claims on the other party’s estate after death and adult child maintenance.

The different types of financial agreements are:

• In contemplation of a marriage (s90B);
• In contemplation of a de facto relationship (s90UB);
• During a marriage (s90C);
• During a de facto relationship (s90UC);
• After divorce (s90D); or
• After a breakdown of a de facto relationship (s90UD)

For a binding financial agreement to be legally valid, a number of requirements have to be met. These include:

• each party must have received independent legal and advice before signing the agreement
• each party’s solicitor must provide a certificate that such advice has been given
• the agreement must clearly say that it is an agreement under the appropriate section of the Family Law Act
• each party must have signed the agreement
• each party must receive a copy of the signed agreement

Expert legal advice is essential because of the binding nature of a financial agreement and limited intervention by the Courts. Our family lawyers will help you draft your agreement to:

• Best protect your assets – including inheritance;
• Ensure it complies with formal requirements set out in the Family Law Act;
• Provide certainty;
• Protect ownership and retention of any business/commercial interests;
• Prevent potentially costly and time-consuming litigation; and
• Provide peace of mind when looking after your assets in the event of a marriage breakdown.

Please be warned, that so-called online “kits” and other downloadable databases of so-called “precedent” clauses will not be effective in putting in place a Binding Financial Agreement to protect future assets.

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Because binding financial agreements involve many technical aspects which can include issues relating to family and property law, it is essential that a person who is considering entering into a financial agreement, varying an agreement, or have the agreement set aside, to always seek legal advice in relation to their matter.