This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Financial Agreement Post Relationship/Post Separation


How you and your husband/wife deal with your assets after you separate is referred to as a “property settlement” and how you and your husband/wife deal with meeting your week to week living expenses after you separate is referred to as “spousal maintenance”.

If you and your husband/wife separate then you do not need to go to court to work out what happens with your assets, debts, superannuation and how your future financial needs will be met. You and your husband/wife can reach an agreement about property settlement or spousal maintenance. If this happens then it is important for the arrangement to be properly formalised to enable both of you to move on with your lives. One way this can be formalised is through the use of a financial agreement that is binding. These agreements are commonly referred to as binding financial agreements.

A binding financial agreement is a contract between you and your spouse that provides:

  • that neither you or your husband/wife will take the other to court asking for an order about property settlement or spousal maintenance; and
  • details about how your assets will be divided or spousal maintenance is to be paid to you or your husband/wife.

There are strict requirements for a binding financial agreement to be valid. These are:

  • that the agreement is in writing;
  • that the agreement is signed by you and your spouse;
  • that before you and your spouse sign the agreement, you each must have received independent legal advice, from a lawyer who practises in Australia, about the advantages and disadvantages of you signing the agreement and how it affects each party’s legal rights;
  • that you and your husband each receive a signed statement from your respective lawyers that you have each received the required advice before the agreement was signed;
  • that a copy of the signed statement of legal advice received by you is provided to your spouse or their lawyer;
  • that a copy of the signed statement of legal advice received by your spouse is provided to you or your lawyer;
  • that the agreement has not been terminated by you and your husband/wife or set aside by the court.

If any of the above requirements is not followed then there is a risk that the agreement that you and your spouse signed will not stop either of you asking the court to make an order about property settlement or spousal maintenance.

A binding financial agreement cannot be changed and can only be brought to an end by you and your spouse signing a termination agreement or the court setting it aside. Setting aside a financial agreement is difficult to do if all the requirements have been followed.

A binding financial agreement allows you and your spouse to negotiate and have your own input about how your respective financial affairs will be dealt with. This usually saves on legal costs associated with court proceedings and the emotional cost that is often involved with a dispute about property settlement or spousal maintenance.

We have qualified and expert family lawyers who can advise and guide you about how to negotiate and finalise a binding binancial agreement if you and your husband/wife have separated. Contact Armstrong Legal.

WHERE TO NEXT?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

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