Financial agreements could be entered by any two people who are married or are preparing to marry. Financial agreements are binding - in that sense they are very hard to overturn - but they do need to satisfy the formal requirements specified in section 90G of the Family Law Act 1975 (“the Act”) to achieve this status: the agreement must be penned. An oral agreement won’t suffice. It is because they are quite complex records, and specificity is essential; both sides must get independent legal advice from a legal practitioner. These tips must tell each of you what the agreement means for you, when it comes to your rights, and the positive aspects and down sides of the agreement. It is encouraged that you get these suggestions in writing; the agreement must contain a clause saying you have each received such advice; a signed certificate from the legal practitioner attesting to these tips must be coupled to the agreement; each party must sign the agreement; finally, each party must have either a copy or the original of the financial agreement.
These steps basically avoid either party from saying they were not conscious of the outcomes of the agreement when they accessed into it. When is a Financial Agreement Not Binding? Even though they offer comparable certainty, financial agreements are not dependable and they can be overturned in some very specific occasions. Section 90K of the Act lists the first few situations, notably where: any of the above formal steps have not been satisfied; you have not disclosed, or have concealed or misrepresented, the extent of your assets and resources at the time you accessed into the agreement; it is impracticable for the agreement to be performed, for instance; a transformation has occurred relating to a child which will cause that child to experience hardship; or you entered into the agreement by fraud, or for the purpose of defrauding another.
Your legal advisor can provide additional information on these, especially as certain standard clauses in financial agreements could be void. For example, section 90F overturns any clause that forbids the courts from instituting a maintenance agreement if, at the time, the other party was unable to support themselves.
A financial agreement may also be overturned by contract law, because they're, basically, a contract. A full breakdown of these situations is past the scope of this article, but in conclusion, they arise in the operation of getting one party to sign the agreement, the other party engaged in conduct that was highly unethical or fraudulent; the agreement is vague and it is unclear what it promises to do; either party forced the other person to sign the agreement; or both sides sign a new agreement terminating the financial agreement.
Many of these factors, nonetheless, should be dealt with by your legal practitioner when you obtain advice as to the financial agreement. Due to the difficulties associated with drafting a relatively intricate document, it is recommended you also use your practitioner to draft, or help draft, your financial agreement. This will help ensure it is binding, and offer the mandatory safety to both of you should the relationship fall apart.
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