If you and your former partner are able to agree on arrangements for your finances and property, you can formalise these arrangements outside of court by entering into a Financial Agreement.
What is a Financial Agreement?
A Financial Agreement is a contract between two or more parties made under Part VIIIA (for marriages) or Division 4 of Part VIIIAB (for de facto relationships) of the Family Law Act 1975.
A Financial Agreement, if it binding, ousts the Court’s jurisdiction in relation to financial proceedings between the parties generally, or in relation to specific issues. In other words, a Financial Agreement, if prepared and entered into properly, can be a way to ‘contract out’ of court proceedings.
Does a Financial Agreement have to deal with everything?
A Financial Agreement can ‘cover the field’ – it can address all aspects of the financial relationship between the parties.
However, a Financial Agreement can also deal with only some issues, such as spousal or de facto maintenance.
When can we enter into a Financial Agreement?
Marriage
You can enter into a Financial Agreement before the marriage (see section 90B), during the marriage (see section 90C), or after the marriage (see section 90D).
It is mandatory to get independent legal advice before entering into a Financial Agreement.
De facto relationship
You can enter into a Financial Agreement before the de facto relationship (see section 90UB), during the de facto relationship (see section 90UC), or after the de facto relationship (see section 90UD).
It is mandatory to get independent legal advice before entering into a Financial Agreement.
Is my Financial Agreement binding?
To be binding, a Financial Agreement must meet certain technical requirements, which are set out in sections 90G (for Financial Agreements about marriages) and 90UJ (for Financial Agreements about de facto relationships) of the Family Law Act 1975.
The law about Financial Agreements is very complex. If you are a party to a Financial Agreement (or a purported Financial Agreement) which may come into effect, you should seek legal help.
Can the Court set aside a Financial Agreement?
The Court has power to set aside Financial Agreements in some circumstances, which are set out in sections 90K (for Financial Agreements about marriages), and 90UM (for Financial Agreements about de facto relationships) of the Family Law Act 1975.
The law about Financial Agreements is very complex. If you are a party to a Financial Agreement (or a purported Financial Agreement) which you think should be set aside, you should seek legal advice.
Mandatory legal advice
Each party to a Financial Agreement must be provided with independent legal advice about prescribed matters by an Australian legal practitioner before entering into the Financial Agreement.
For information on how to get legal advice, see Legal help.
For information about other options if you agree about financial arrangements see We have agreed.
More information
The Attorney-General's Department guide Property and Financial Agreements and Consent Orders – What You Need To Know, provides information to separating couples about the options for resolving property arrangements, from an informal agreement through to filing consent orders with the Court and litigating the matter in court.
