A financial agreement is a written agreement between two or more people that is compliant with Part VIII or VIIIAB of the Family Law Act 1975 (Cth).
Financial agreements are similar to the well-known pre-nuptial agreement, but are signed before, during or after a marriage. Under Section 90D of the Family Law Act, financial agreements cover the following:
division of property, finances and debts after a marriage breakdown
superannuation
spousal maintenance
other incidental issues.
For financial agreements to be legally binding, both parties must have signed the agreement and have received independent legal and financial advice before signing.
The different types of financial agreements are:
In contemplation of a marriage (s90B);
In contemplation of a de facto relationship (s90UB);
During a marriage (s90C);
During a de facto relationship (s90UC);
After a breakdown of a de facto relationship (s90UD).
A financial agreement outlines the parties' agreement as to their financial arrangements. Financial Agreements are intended to avoid the need for the parties to go to court in respect of property matters.
A financial Agreement may also include the parties' agreement on other issues such as maintenance, claims on the other party's estate after death and adult child maintenance.
A financial agreement is not a court order. It is an agreement that is governed by statute. Equitable contractual principles which may be used to set aside the agreement have also been incorporated into the legislative provisions governing financial agreements (s90KAand s90UN).
A court is required to determine whether a financial agreement or a termination agreement is valid, enforceable or effective according to contractual principles of law. A court may also grant contractual remedies. In light of the changes to the legislation under the Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009, in relation to enforceability where parties have not strictly complied with legislative requirements, the court may consider whether it was unjust and inequitable for the agreement not to be binding upon the parties - see s90G(1A), s90J(2A), s90UJ(1A) and s90UL(2A).