Financial Agreements are created to restrict the level of property that is capable of distribution upon separation if made in accordance with the Family Law Act 1975 (as amended) (“the Act”) and can be made to resolve a dispute as to property once separation has occurred. The pre-nuptial agreement can be made before the marriage (the nuptials) or after the nuptials and during the marriage.
The Act provides significant requirements to be complied with to ensure that a financial agreement is a valid document and is binding pursuant to the Act. Failure to comply with the requirements of the Act will render the agreement invalid and may expose you to significant financial loss. It is critical that you obtain legal advice and appropriate assistance in the preparation of a financial agreement. A financial agreement can also:-
- be made prior to the commencement or during a de facto relationship; and
- again restrict the property that is to be considered by the Court for division between the parties upon separation.
A properly worded and complaint financial agreement will be in substitution of parties rights under the Act for a distribution of property. It may also impact spousal maintenance and other monetary issues post separation.
The timing of the preparation of a financial agreement is also critical and it is important to ensure that it is not made immediately prior to or after nuptials as that may invalidate the document or cause it to become invalid as a result of a finding of a Court (see Parkes (2014) FCCA 102 where the Court set aside an agreement which was made two (2) days before the parties wedding although the parties had been de facto parties for nearly seven (7) years).
Of course each matter depends on its factual circumstances and it is critical to seek advice and legal assistance from a suitably experienced family law practitioner. Joseph O’Hare has been practicing family law for over 20 years and has significant expertise in the family law area.
Should you have any issues or considerations as to binding financial agreements, please contact Joseph O’Hare on 3266 8999.
O’Hare Law Lawyers and Solicitors
Suite 6, 82 Buckland Road, Nundah Q 4012
PO Box 491 Clayfield Q 4011
Telephone: (07) 3266 8999
Facsimile: (07) 3266 3633