What are financial agreements?
The Family Law Act provides for parties to a marriage or de facto relationship to enter into a binding legal agreement about the financial arrangements should their marriage or de facto relationship break down. Sometimes people know these agreements as ‘prenuptial agreements’ but the legal term is ‘financial agreements’.
Sections 90B-90KA of the Family Law Act deal with financial agreements by parties to a marriage. Sections 90UA-90UN apply to financial agreements by de facto couples. The Act only provides for financial agreements between de facto couples if the parties to the relationship were ordinarily resident in New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory, the Northern Territory or Norfolk Island when the agreement was made.
You can make a financial agreement before, during or after a marriage or de facto relationship. These agreements can cover:
- financial settlement (including superannuation entitlements) after the breakdown of a marriage or a de facto relationship
- financial support (maintenance) of one spouse by the other after the breakdown of a marriage or a de facto relationship,
- any incidental issues.
For a financial agreement to be legally binding, you must both have:
- signed the agreement, and
- received independent legal and financial advice before signing.
Can a financial agreement be set aside?
A court can declare the agreement invalid and set it aside. The situations in which that is possible are provided at Section 90K (married couples) and Section 90UM (de facto couples) of the Family Law Act.