Financial Agreement Lawyer
Though we do not enter a relationship with the expectation of it ending, some relationships don’t stand the test of time. When they do end it can be a messy, emotional, and complicated period of dividing up property. That’s why to avoid unpleasantness, family law financial agreements exist.
A Binding Financial Agreement or what is sometimes known as a pre-nuptial agreement, is an agreement between two individuals that outlines how assets (including superannuation) will be divided and any ongoing financial maintenance. It sets out details including assets each party had prior, acquired during and will retain at the end of the relationship.
A financial agreement is a useful way to protect assets and to avoid stress and hardship during a difficult period in life. Court proceedings can be time consuming, expensive and emotionally draining. With a financial agreement you can avoid all of that. Further, a financial agreement is useful if:
- You’re going to receive a large inheritance that you wish to be excluded from any settlements at the end of the relationship.
- You have a child from a previous relationship, for whom you wish to preserve some assets.
- There is a specific asset, such as a business, you wish to retain ownership of.
A financial agreement puts you and your partner in charge of your property rather than leaving it to a court to decide how to divide your assets.
A financial agreement can be set up before, during or after a relationship, even before you’re living together. However, for it to be valid, both parties must have a certificate from a lawyer stating they have each received independent legal advice covering how their agreement will affect their rights and what the advantages and disadvantages are of making the agreement.
Both parties can cancel or change a financial agreement but both will need another document from their lawyer showing legal advice has been given.
On occasion, an agreement will be cancelled or set aside because of:
- Fraud or duress in obtaining the agreement
- The agreement is not practical to carry out
- A change in the care of welfare of a child
- The agreement was entered into to defraud or defeat a creditor
This is why it is important that you have a reputable team on your side to ensure there’s no errors in the drafting of the agreement.
Should your partner have drawn up a financial agreement and you wish to receive advice, our expert lawyers can help you understand the details of the agreement. We offer financial agreement services for married parties and those in de facto relationships.
Financial agreements can be complex and technical documents, which require deft drafting to ensure they’re fit for purpose. Get one of our highly experienced family lawyers to advise on and/or set up a financial agreement. Give us a call today (03) 8566 9893.
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Frequently Asked Questions
What is a Financial Agreement?
A financial agreement is an agreement that meets the criteria set out in the Family Law Act 1975 and is an option available to separated parties to finalise the terms of their property settlement.
Both parties to the financial agreement are required to obtain independent legal advice prior to signing the agreement.
Can I be Forced to Sign a Financial Agreement?
No, you cannot be forced to sign a financial agreement. If you sign a financial agreement under pressure, the agreement may be set aside.
Often, the presentation of a financial agreement is an opportunity to commence negotiating a just and equitable outcome. You are not obligated to accept the terms of a financial agreement that is presented to you.
Why Do I Need a Legal Certificate?
The requirement to obtain legal advice before a financial agreement is binding ensures that both parties entering into the agreement are fully aware of the risks and benefits attaching to a financial agreement, before it becomes binding and that the terms of the agreement reflect your entitlements.
The role of the lawyer, is to not only ensure that the document itself will be binding, but is also to advise you of your entitlements in relation to a property settlement taking into account the facts and circumstances of your relationship.
Do I have to disclose my Financial Circumstances?
Yes, you are required to make full and frank disclosure of your financial circumstances to the other party prior to entering into a financial.
The consequences of failing to disclose an asset or your full financial position can lead to disastrous consequences, including the setting aside of the agreement by the court and a renegotiation of a property settlement.
Is a Pre-Nuptial Agreement the same as a Financial Agreement?
In essence yes, however in Australia a pre-nuptial agreement is referred to as a financial agreement.
This type of financial agreement will detail the financial circumstances of each party prior to a marriage, and will set out what each party agrees will occur in the event that the relationship breaks down at a later date. It is important to consider what will occur in the event of a change in circumstances, such as the birth of a child or where one party is no longer able to engage in active employment.
Duffy & Simon advises clients on these issues and prepares and reviews financial agreements prior to a marriage occurring.