Ensure your financial assets are protected in the event of a relationship breakdown. Trust the experts at Berryman Partners.
A Financial Agreement sets out how the couple’s assets, financial resources and liabilities will be divided in the event that the relationship breaks down. Financial Agreements must be carefully considered and accurately worded to ensure they take into account implications for family trusts, companies, super funds and tax. For this reason, it is important to seek legal advice.
At Berryman Partners, we are experienced in drafting Financial Agreements for each individual’s circumstances. We draft these documents on a case by case basis to ensure you are adequately protected. If you think a Financial Agreement might be suitable for you, we can provide you with expert advice.
You can make a financial agreement before, during or after a marriage or de facto relationship.
Financial agreements can cover:
- Transfer or sale of property
- Splitting of superannuation
- Child and spousal maintenance (See the Spousal Maintenance page for more information)
Financial Agreements can be entered into at various times throughout the relationship:
- Before marriage – commonly referred to as a prenuptial agreement
- During marriage
- After a divorce order is made
- Before parties enter into a de facto relationship
- During a de facto relationship
- Following the breakdown of a de facto relationship
If the Financial Agreement is made after a divorce order is issued, the agreement must be made within 12 months.
In order for a Financial Agreement to be binding, there are certain requirement that must be met, including:
- All parties to the Agreement must sign the Agreement
- Each party must be provided with independent legal advice as to the effect of Agreement
- Each party must sign a certificate that they have received such independent advice and a copy of this certificate is provided to the other party (usually attached to the Agreement)
- Each party must be provided with a signed statement by a legal practitioner certifying that they advised the parties of the advantages and disadvantages of the Agreement
There are circumstances where a Court can set aside a Financial Agreement including:
- If the Agreement was obtained by fraud
- A party to the Agreement entered into it for the purpose of defrauding a creditor
- If the Agreement is drafted in a way that it is unenforceable
- Circumstances have arisen since the signing of the Agreement that make it impracticable
- A material change of circumstances have occured
- The Agreement covers at least one superannuation interest that is unsplittable interest
Financial Agreements – FAQ’s
You may have heard of a ‘Pre-Nup’ or even a ‘BFA’. These are forms of Financial Agreements A Financial Agreement is a written agreement that sets out what is to happen to a couple’s assets and liabilities, in the event that they split up or if the relationship has already ended.
You can enter into a Financial Agreements at any stage of a relationship: before you live together; whilst you are living together; if you are intending to marry; whilst you are married; following the breakdown of your relationship (de facto or marriage) and after divorce.
If you would like further information about these agreements, give us a call for a confidential discussion with one of our family law lawyers.
Consent Orders are considered and reviewed by the Court and the Court makes a determination whether the agreement is just and equitable. Financial Agreements are a contractual agreement as agreed between the parties.
If you are not sure which type of document is most suitable for your circumstances, our team are available to assist and advise you based on your individual circumstances.
Financial Agreements are entered into with the intention that it will finally sever the financial relationship between parties following the breakdown of their relationship. It is however possible that a Financial Agreement can be set aside in particular circumstances only.
As a Financial Agreement can be entered into at any stage of a relationship, it is possible to also terminate an existing Financial Agreement and enter into a new one. Both parties have to agree to this.
If you wish to discuss the circumstances in which a Financial Agreement can be set aside, or reviewing your existing Financial Agreement, our team are available to assist.
No, you and your ex will both need to engage your own lawyers. It is a requirement that both parties receive their own independent legal advice about the nature and effect of the agreement. Usually, one solicitor would prepare the document and the other solicitor will provide independent legal advice to the other solicitor.
If you seek some further clarification in relation to this issue, give our family law team a call for a detailed discussion.
No. A Financial Agreement can only deal with your financial circumstances and cannot deal with parenting matters. If you are wanting to document an agreement about parenting, you will need to consider a Parenting Plan or Consent Orders which we can assist you with.
Yes, same sex couples including those married and in de facto relationships can enter into Financial Agreements pursuant to the provisions of the Family Law Act 1975.
