Binding Financial Agreements – To Sign or Not to Sign?
Pamela Cominos, Lawyer, for Single Mum Australia
Have you and your ex agreed on a property settlement? Thinking about whether to sign a Financial Agreement? There are some very important matters that you should know about financial agreements before you agree to sign.
What should you know about Financial Agreements?
Financial Agreements are private agreements, entered by consent, between parties to a marriage or a de facto relationship. They can be made prior to, during or after separation or divorce of a de facto relationship. Financial agreements can deal with all property, including superannuation, financial resources and /or maintenance of the parties to the marriage or de facto relationship. They do not deal with parenting arrangements for the children of the relationship.
The main advantage of a financial agreement is that it requires no court appearance and no approval from the court. Indeed the purpose of the financial agreement is to exclude the jurisdiction of the court, with some very few exceptions. Further a financial agreement is effective upon signing the document by both parties, and as such there are no court delays or adhering to court timetables.
The main disadvantage of entering into a financial agreement is that the agreement does not have an independent third party, usually the Registrar of the Family Court of Australia, reviewing the agreement, as is the case with consent orders which are filed at Court. It is extremely important that if you are entering a financial agreement, that you fully understand the terms of the agreement and the effect of the agreement on your financial position and circumstances.
What criteria must be satisfied before a Financial Agreement is binding?
Under the Family Law Act 1975 (Cth), there are specific requirements that must be satisfied to ensure that the financial agreement is binding. A financial agreement is binding on the parties to the agreement if, and only if:
- The agreement is in writing and signed by both parties; and
- The parties are contemplating entering a marriage or de facto relationship, are in a de facto relationship or marriage, have separated or divorced; and
- It includes a statement from each party to the agreement, before the agreement was signed that the party obtained independent legal advice on their rights and the advantages and disadvantages at the time that the advice was provided to the party of making the agreement; and
- Either before or after signing the agreement, each party was provided with a signed statement by a legal practitioner certifying that the advice with respect to the parties rights and advantages and disadvantages in entering the financial agreement was given; and
- A copy of the legal practitioner’s statement is given to the other party or to a legal practitioner of the other party ; and
- The agreement has not been terminated and has not been set aside by a court and
- Includes a separation declaration unless the agreement is signed post-divorce.
If you are considering entering a financial agreement, speak to a family lawyer who is skilled at drafting financial agreements and understands the effects of the agreement on your financial position
Pamela Cominos is the Principal Family Lawyer at Cominos Lawyers, Sydney who specialise in all aspects of Family Law – phone 02 8999 1800.
This article contains general information only. For advice regarding your own personal circumstances, always seek individual advice from a qualified professional. You can read the full singlemum.com.au Disclaimer here
About Pamela Cominos
Pamela holds a Masters of Arts degree together with a Bachelor of Laws Degree from University of New South Wales.
Pamela is passionate about being a lawyer and she is successful in assisting her clients in matters that involve complex parenting and property issues. Pamela is a skilled advocate and will represent you at Court with confidence and care. She is a pragmatic and compassionate solicitor who gives her undivided attention to your matter.
Pamela is committed to her family law practice and in particular women in domestic violence. She is on the legal aid Family Law Panel and is a referral solicitor for a number of Women’s Refuges in NSW.
You can email Pamela at firstname.lastname@example.org