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Family Law

Financial Agreements

Binding Financial Agreement Lawyers Essendon and Melbourne.

Mendis & Gibson Lawyers

Binding Financial Agreement Lawyers Essendon and Melbourne CBD (Prenup and Postnup)

Financial agreements are often entered into to divide property between the parties including their superannuation interests. Financial agreements may be entered into prior to marriage/de facto relationships, during marriage/de facto and after the parties have divorced or separated.

Financial agreements may state:

  • How property or financial resources are to be dealt with in the event of the relationship dissolution
  • The maintenance of either party during the marriage/de facto or after the dissolution of the marriage or separation.
  • Any other matters related to property division or spousal maintenance

Mendis & Gibson Lawyers

What should I do if I want to have a financial agreement with my partner?

It is crucial to seek legal advice if you are considering creating a financial agreement with your partner. It is important to understand the full effects of the agreement and requirements which are necessary in order for the Financial Agreement to be binding with the advantages and disadvantages of its contents.
  • It must be in writing and stated to be entered pursuant to the correct section of the Family Law Act.
  • To make an agreement, you and your partner will need to make full disclosure in relation to financial position and assets and liabilities held, example of Assets are House, Vehicle, Superannuation, Shares, Savings and Liabilities are Mortgage, Loans and Finance.
  • It must be signed by all parties
  • It must be signed only after each party has received independent legal advice on the nature of the agreement, the effect of the agreement on their rights, the advantages and disadvantages of the agreement to the party at the time of entering into it
  • It is crucial to know that normal contractual principles apply in financial agreements and they are legally enforceable
  • Prior to signing an agreement, your legal practitioner will provide a signed statement that they have provided you with legal advice
  • your partner also must obtain independent legal advice prior to signing the Agreement stating that she/he understood and voluntarily signed the agreement.
  • your partner also must obtain independent legal advice prior to signing the Agreement stating that she/he understood and voluntarily signed the agreement.

Mendis & Gibson Lawyers

What are the Benefits of having a Binding Financial Agreements?

  • It gives you a peace of mind so that you know that if something does go wrong and there is a separation, both parties are clear on what is to happen
  • If you are a wealthy individual, then this may serve as a good Asset Protection plan
  • It is best to have safeguards in place in scenarios where you met the partner recently or online dating app/website and you quickly want to move in, but you do not know the person well enough as you may over a long term relationship
  • To reduce the stress on the relationship and to understand the possible implications of separation.
  • To give a clear road map
  • To protect property that people have accumulated before the relationship or property that they are going to receive such as inheritances or gifts from family
  • There is stamp duty and Capital Gains Tax relief for transactions entered into pursuant to a financial agreement
  • Post separation property settlement negotiations are often more cost effective and timely if a Financial Agreement is in place

Mendis & Gibson Lawyers

Can superannuation amounts be included in the financial agreement?

Yes, financial agreements may include provisions relating to the division of superannuation monies. The split may be listed as a percentage, a defined base amount, or a formula to calculate the amount.

Mendis & Gibson Lawyers

Can spousal maintenance be included in a financial agreement?

Yes, spousal maintenance may be included in an agreement, however it is crucial to provide accurate information of the name of the party for whom the provision is made, and the monetary sum or proportion of property. Without this information, the spousal maintenance provision will not be enforceable.

Mendis & Gibson Lawyers

Can child support arrangements be included in a financial agreement?

Issues relating to child support can be included in the financial agreement, however it is recommended that child support instead be provided for in a Binding Child Support Agreement. It is best to keep issues relating to children separate from the other agreements and settlements.

Mendis & Gibson Lawyers

Can financial agreements be deemed unenforceable?

The Court may set aside a financial agreement if they are satisfied of any of the following:
  • The agreement was entered into by fraud
  • The agreement was entered into to defraud creditors
  • The agreement was entered into to defraud another person who is a party to a de facto relationship with a person in the agreement
  • The agreement is void due to reasons such as vagueness, incompleteness, duress, mistake, incapacity, or uncertainty
  • Circumstances have arisen that make the agreement hard to carry out
  • A change in circumstances of the welfare of a child
  • A party has engaged in unconscionable conduct
  • A party has engaged in unconscionable conduct
  • A flag exists on a superannuation interest
  • A superannuation interest cannot be split

Mendis & Gibson Lawyers

What happens if my partner passes away?

The law states that financial agreements survive the death of a party. As such, this means the obligations under the agreement will bind the deceased’s estate.

However, the Court is not bound by the financial agreement when determining family provision claims on the estate. It is recommended you consider this and draft provisions in the agreement in the event one of the parties to the agreement passes away. If you are seeking to enter into a Binding Financial Agreement, irrespective of the status of your relationship, it is important to obtain expert legal advice.

Mendis & Gibson Lawyers

What if I want to end a financial agreement?

A further agreement may be entered into by the parties to have the original financial agreement terminated. Upon application to the Court, the Court will consider whether termination is just and equitable and does not unfairly alter the rights of the parties.

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Our Founders Sidney Mendis and Anna Gibson established Mendis & Gibson Lawyers nearly 20 years ago. Over the decades, we have grown to become one of the leading Law firms in Melbourne with offices in North West, Melbourne CBD and South East.

Main Office (Niddrie/Essendon)

Melbourne CBD

Dandenong Office

IMPORTANT LINKS

Our Founders Sidney Mendis and Anna Gibson established Mendis & Gibson Lawyers nearly 20 years ago. Over the decades, we have grown to become one of the leading Law firms in Melbourne with offices in North West, Melbourne CBD and South East.

Main Office (Niddrie/Essendon)

Melbourne CBD

Dandenong Office

IMPORTANT LINKS

IMPORTANT LINKS

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