Family Law
Binding financial agreements
An agreement is only worth what it survives. We draft ours to be tested, because one day they may be.
Certainty, in writing, in advance
A binding financial agreement lets a couple decide for themselves how their property, superannuation and financial resources will be divided if the relationship ends, rather than leaving it to a court years later.
Done properly, it is one of the most useful documents in family law. It protects a business, a farm, an inheritance, or the children of an earlier relationship. It replaces an unknowable future argument with a known present one.
Done carelessly, it is worse than nothing. It gives false comfort for a decade and then falls over at the moment it is needed, because the disclosure was incomplete or one party was handed it three days before the wedding.
When they are made
Before, during, or after
- Before marriage
- Section 90B. The agreement commonly called a prenuptial agreement. Start months ahead of the wedding, not days.
- During marriage
- Section 90C. Often used when a business is started, an inheritance is received, or a couple reconciles after separating.
- After divorce
- Section 90D. A way to record a final property settlement without filing consent orders.
- De facto couples
- Sections 90UB, 90UC and 90UD mirror the above for de facto relationships, including same-sex relationships.
- The non-negotiable
- Independent legal advice for each party, before signing, with a signed statement from each solicitor. There is no shortcut.
What we do
Drafted, advised, or challenged
We act on all three sides of a financial agreement.
- Drafting binding financial agreements from scratch
- Independent legal advice on an agreement drafted by the other side
- Pre-nuptial agreements ahead of a marriage
- Agreements protecting a business, farm or inheritance
- Agreements protecting children of an earlier relationship
- De facto and same-sex relationship agreements
- Termination agreements ending an earlier agreement
- Applications to set aside an agreement
- Defending an agreement against challenge
- Full financial disclosure and valuation advice
Common questions
Financial agreements, answered plainly
What is a binding financial agreement?
A private contract under the Family Law Act that sets out how property and financial resources are divided if a relationship ends. It can be made before, during or after a marriage or de facto relationship, and once it is in force it ousts the court's power to divide that property.
Is a binding financial agreement the same as a prenup?
A prenuptial agreement is the everyday name for a binding financial agreement made before marriage, under section 90B of the Family Law Act. The same framework covers agreements made during a marriage and after a divorce order.
Do we both need our own lawyer?
Yes, and this is not optional. Each party must receive independent legal advice about the effect of the agreement on their rights, and about its advantages and disadvantages, before signing. Your solicitor must provide a signed statement to that effect. An agreement without it is vulnerable.
Can a binding financial agreement be set aside?
It can. Common grounds include a failure to disclose material assets, fraud, duress or undue influence, unconscionable conduct, impracticability, and a material change in circumstances relating to a child. Agreements signed on the eve of a wedding are attacked most often, and most successfully.
Do we need an agreement if we are only de facto?
The Family Law Act treats de facto property claims much like marriages. De facto partners can enter binding financial agreements under sections 90UB, 90UC and 90UD, and many should, particularly where one party brought substantially more into the relationship.
When should we start?
Early. A pre-nuptial agreement signed weeks or months before the wedding, after real negotiation and full disclosure, is far more robust than one produced days out. Rush is the single most common reason these agreements fail.
Speak to Lovemore
Get it drafted so it holds
Speak to Lovemore about a binding financial agreement, or about an agreement you have been asked to sign.
- Phone
- 0450 500 301
- lovemore@lovemorelawyers.com
- Office
- 94a Railway Street, Rockdale NSW 2216