Financial agreements could 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 formal requirements specified by 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 intricate records, and specificity is essential; both sides must receive independent legal advice from a legal practitioner. These suggestions must tell you both what the agreement means for you, when it comes to your rights, and the advantages and drawbacks of the agreement. It is encouraged that you get these tips in writing; the agreement must contain a clause stating you have each obtained such advice; a finalized certificate from the legal practitioner attesting to these tips 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 essentially avoid either party from saying they were not conscious of the outcomes of the agreement when they entered into it. When is a Financial Agreement Not Binding? Even though they offer comparable assurance, financial agreements are not dependable and they can be overturned in some very specific occasions. Section 90K of the Act lists the first few circumstances, 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 entered into the agreement; it is impracticable for the agreement to be completed, for example; a modification has occurred associated with a child which will cause that child to experience difficulty; 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 may potentially be void. For example, 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 be overturned by contract law, because they’re, in essence, a contract. A full breakdown of these situations is beyond the scope of this article, but in summary, they arise during this process 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 each party sign a new agreement terminating the financial agreement.
Most of these factors, however, should be handled by your legal practitioner when you receive advice as to the financial agreement. Due to the difficulties associated with drafting a comparatively complicated 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 provide the mandatory defense to the two of you should the relationship fall apart.
Preparing Financial Agreement isn’t a problem. Learn more about Inveiss Legal through our articles.. This article, What Is The Obligation Of Having A Financial Agreement? has free reprint rights.
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