Financial Agreement Family Law Act 1975
A provision of a financial arrangement relating to the maintenance of one of the spouses who is a party to the agreement or of one or more children is void unless the provision specifies: (aa) At the time of conclusion of the agreement, the parties to the marriage are not the spouses, the parties to another binding agreement (regardless of: whether they were made under this Section or Section 90B or 90(D) with respect to any of these matters; and in American TV shows and movies, the term “pre-nup” is often used. You may be interested to know that there is actually no marriage contract in Australia. On the contrary, under Australian law, people can enter into a financial agreement at any stage of their relationship to cope with their financial resolution or financial support after the relationship fails. The court concluded that for an agreement to be binding, the parties do not need to have a common intention on the exact words in which the agreement is to be expressed, but only on its effect. Since the agreement could not be a binding financial agreement without reference to section 90B of the Act, McNab J.A.`s correction of the agreement to include such a reference was a valid order. The parties must have wanted the agreement to be a binding financial agreement, as no other instrument could have implemented their intention. The husband`s appeal was dismissed and he was ordered to pay the wife`s costs. Section 90B of the Family Law Act sets out the circumstances in which a written agreement between parties contemplating marriage constitutes a binding financial agreement. In the recent case of Graham v.
Squibb, the Family Court considered the situation in which the parties had claimed to have entered into such an agreement, but had not satisfied the formal requirements set out in section 90B. The husband appealed Judge McNab`s decision, arguing that the agreement was not intended to be a binding financial agreement. At the hearing of the husband`s appeal, Kent and Austin JJ. stated: “A party seeking correction of a contract must provide clear and convincing evidence that it does not represent the final intent of the parties. To this end, the mutual will of the parties constitutes the relevant evidence, since there is no room for rectification of the contract if the opposite intention is not shared. (4) A financial agreement (the new agreement) entered into under subsection (1) may terminate a previous financial agreement (regardless of how it was entered into) if all the parties to the previous agreement are parties to the new agreement. (c) order, in addition to or in place of one or more of the orders referred to in points (a) or (b), that the agreement or a particular part of the agreement be enforced as if it were an order of the court. It is important to consider a binding financial agreement if: The wife requested a statement that the agreement was binding on the parties. The husband requested the cancellation. Requirements for the provisions of financial arrangements for the maintenance of a party or a child or children (2A) For the avoidance of doubt, a financial arrangement may be entered into under this Section before or after the breakdown of the marriage. (b) a relevant maintenance contract granting a benefit to a party or child of the marriage to which the maintenance contract relates, to the extent that the maintenance contract confers that benefit; In Graham v.
Squibb, the husband and wife had signed an agreement called a “marriage contract” the day before their marriage. The agreement stipulated that each party would retain the property it had included in the marriage in the event of separation. The agreement listed each party`s assets in separate annexes. The agreement did not concern property acquired by the parties after the marriage. (a) how, in the event of the breakdown of the marriage, all or part of the property or financial resources of one or both spouses are to be treated at the time of the conclusion of the agreement or at a later date and during the marriage; The agreement contained no reference to section 90B of the Family Law Act or any other reference to the Act. Instead, the agreement referred to the “laws of the State of Victoria.” For a financial agreement to form a binding agreement between the parties, it must meet the strict requirements of the law. Therefore, it is essential that a party who wishes to enter into a financial agreement before a marriage or common-law relationship, during a relationship or after a separation seek independent legal advice on their rights, claims and the appropriate document to formalize their agreement. 3. A court may, at the request of a person who was a party to the terminated financial agreement or any other interested person, make such orders (including an order for the transfer of property) that it considers fair and appropriate to safeguard or adapt the rights of the persons involved in this financial agreement and any other interested person.
(b) before the agreement is signed, the spouse of each spouse has been independently informed by a lawyer of the effects of the agreement on the rights of that party and of the advantages and disadvantages available to that party at the time of consultation when the agreement was concluded; and (3) For the purposes of this Division, a support contract, deed or other act conferring a right of ownership on a person may be considered a benefit to the person, even if the maintenance contract, deed or other instrument of the person also claims other property of equal or greater value. (b) the Agreement is void, voidable or unenforceable; or (b) the agreement is expressly entered into in accordance with this section; § 90G describes the circumstances in which financial agreements are binding. The requirements are strict and all parties must have received independent legal advice on the impact of the agreement on the rights of the party and the pros and cons of the agreement. In addition, a signed declaration must be submitted to the parties stating that independent legal assistance has been requested and that the agreement has not been terminated. Once both parties have signed the agreement, both parties will receive either the original document or a copy. (a) the agreement is signed by all the parties to the agreement; and lawyers must sign a certificate in each agreement stating that their client has received the necessary legal advice. .