Financial agreements can be accessed by any two people who are married or are preparing to marry. Financial agreements are binding – in that sense they are very challenging to overturn – but they should satisfy the official 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. This is because they are quite intricate documents, and uniqueness is essential; both parties must receive independent legal advice from a legal practitioner. These tips must tell each of you what the agreement means for you, in terms of your rights, and the advantages and disadvantages of the agreement. It is suggested that you get this advice in writing; the agreement must contain a clause stating you have each acquired such advice; a signed certificate from the legal practitioner attesting to this advice must be attached 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 relative guarantee, financial agreements are not rock solid and they could be overturned in certain very specific occasions. Section 90K of the Act lists the first few conditions, notably where: any of the above official 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 entered into the agreement; it is impracticable for the agreement to be carried out, for example; a modification has occurred concerning a child which will cause that child to go through difficulty; or you entered into the agreement by fraud, or for the purpose of defrauding another.
Your legal advisor can offer more information on these, especially as certain standard clauses in financial agreements might be void. For instance, section 90F overturns any clause that discourages the courts from instituting a maintenance agreement if, at the time, the other party was unable to support themselves.
A financial agreement can also be overturned by contract law, because they’re, essentially, a contract. A full breakdown of these situations is past the scope of this article, but in overview, 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 intends to do; either party forced the other person to sign the agreement; or both parties sign a new agreement terminating the financial agreement.
Most of these factors, nevertheless, should be managed by your legal practitioner when you get advice regarding the financial agreement. Because of the difficulties involved with drafting a comparatively complex document, it is strongly recommended you also use your practitioner to draft, or help draft, your financial agreement. This will help ensure it is binding, and provide the mandatory defense to the two of you should the relationship fall apart.
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