There are two ways to finalise a property settlement. You can obtain an order from the court by consent or following a final trial, or, you can execute a financial agreement.
The effect of a binding financial agreement is that it prevents the court from being able to make property adjustment orders under the Family Law Act 1975. It also can deal with spousal maintenance and prevent your former partner from filing an application for spousal maintenance.
Financial agreements are made pursuant to one of six different sections of the Act: in contemplation of, during and post a de facto relationship or in contemplation of, during, or post a marriage. Interestingly, it is also possible to execute a financial agreement both during a de facto relationship and in contemplation of marriage.
Often in relationships there is an economic power imbalance. Because the court does not approve financial agreements, it is possible to execute an agreement which is not just and equitable for each party. Therefore, it is a requirement that each party to a financial agreement receives independent legal advice prior to signing the agreement otherwise it is not considered binding. In the event a party has not received independent legal advice, or signed the agreement under duress, undue influence and/or unconscionable conduct, the agreement can be set aside by the courts. If an agreement is set aside, it means that either party can start proceedings seeking a property settlement and/or spousal maintenance.
In the event you are considering entering into a financial agreement, we recommend you seek advice from one of our experts during a no-obligation initial appointment.
- Financial Agreement in Contemplation of Marriage
- Financial Agreement in Contemplation of De Facto Relationship
- Financial Agreement During Marriage
- Financial Agreement During De Facto Relationship
- Financial Agreement Post Relationship
For advice or representation in any legal matter, please contact Armstrong Legal.