An introduction to enforceable agreements before, during, and after a marriage

by The FindLaw Team

The Family Law Act 1975 (Cth) (the Act) outlines the following type of enforceable agreements:

  • caring for children;
  • division of property;
  • spousal maintenance payments;
  • some child support payments;
  • binding financial agreements;
  • consent orders.

Binding financial agreements

Binding financial agreements may be created before, during and after a marriage has come to an end. Binding financial agreements can deal with any, or all of the property or financial resources of the marriage. For any property or financial resources not dealt with in the agreement, the provisions found under s 90B, 90C, 90D and 90G of the Act, sets out how property and financial resources of the marriage are to be dealt with.

Binding financial agreements can be terminated at any moment if a new binding financial agreement has been entered into between the parties, therefore, terminating the old agreement, or by order of the court.

Agreements before a marriage: s 90B of the Act states that a couple before a marriage, may enter into a written agreement before a marriage in relation to how any, or all of the property or financial resources of either party is to be dealt with in the event of the breakdown of the marriage. If an agreement is created, it can deal with:

  • property owned prior and acquired during the marriage;
  • maintenance during, or after, or both during the marriage, and after divorce;
  • other matters.

Agreements during a marriage: s 90C of the Act states that a couple during a marriage, may enter into a written agreement either before or after separation, but before a divorce, in relation to how any, or all of the property or financial resources of either party is to be dealt with in the event of the breakdown of the marriage. If an agreement is created, it can deal with:

  • property owned prior and acquired during the marriage;
  • maintenance during, or after, or both during the marriage and after divorce;
  • other matters.

Agreements after a divorce order: s 90D of the Act states that once a divorce order has been made, the parties may enter into a binding financial agreement. If an agreement is created, it can deal with:

  • property owned prior and acquired during the marriage;
  • maintenance during, or after, or both during the marriage and after divorce;
  • other matters.

Additionally, a separation declaration signed by at least one of the parties must also be attached.

Creating binding financial agreements

Section 90G outlines the circumstances when financial agreements are binding. The requirements are strict, and all parties must have been provided with independent legal advice about the effects of the agreement on the rights of the party, and the advantages and disadvantages of making the agreement. Additionally, the parties must be provided with a signed statement that independent legal advice had been sought, and that the agreement has not been terminated. After both parties have signed the agreement, both parties will be provided with either the original document, or a copy.

The Act provides the court a wide range of powers to make orders that the court deems necessary to enforce any agreements. 



Findlaw

We welcome your feedback

Hi there! We want to make this site as good as it can for you, the user. Please tell us what you would like to do differently and we will do our best to accommodate!

   
Protected by FormShield


 
 
 
We've updated our Privacy Statement, before you continue. please read our new Privacy Statement and familiarise yourself with the terms.
Feedback