subject: The Concepts Of Having A Financial Agreement [print this page] Financial agreements can be accessed by any two people who are married or are preparing to marry. Financial agreements are binding - in that sense they are very hard to overturn - but they do need to satisfy the official requirements specified in section 90G of the Family Law Act 1975 (the Act) to achieve this status: the agreement must be written. An oral agreement wont suffice. It is because they are quite intricate documents, and uniqueness is vital; both parties must obtain independent legal advice from a legal practitioner. These tips must tell each of you what the agreement means for you, in terms of your rights, and the positive aspects and disadvantages of the agreement. It is encouraged that you get this advice in writing; the agreement must include a clause saying you have each acquired such advice; a finalized certificate from the legal practitioner attesting to these suggestions must be attached to the agreement; each party must sign the agreement; finally, each party must have either a copy or the original of the financial agreement.
These steps fundamentally avoid either party from saying they were not conscious of the implications of the agreement when they accessed into it. When is a Financial Agreement Not Binding? Even though they offer relative certainty, financial agreements are not rock solid and they can be overturned in a few very specific occasions. Section 90K of the Act lists the first few conditions, notably where: any of the above official steps have not been satisfied; you have not disclosed, or have concealed or misrepresented, the extent of your assets and resources at the time you accessed into the agreement; it is impracticable for the agreement to be performed, for instance; a change has occurred relating to a child which will cause that child to undergo difficulty; or you accessed into the agreement by fraud, or for the purpose of defrauding another.
Your legal advisor can offer additional information on these, especially as certain standard clauses in financial agreements could be void. For instance, section 90F overturns any clause that discourages the courts from instituting a maintenance agreement if, at the time, the other party was unable to support themselves.
A financial agreement can also be overturned by contract law, since they're, essentially, a contract. A full breakdown of these situations is past the scope of this article, but in overview, they arise in the operation of getting one party to sign the agreement, the other party engaged in conduct that was highly unethical or fraudulent; the agreement is vague and it is unclear what it intends to do; either party forced the other person to sign the agreement; or both parties sign a new agreement terminating the financial agreement.
All of these factors, nonetheless, should be dealt with by your legal practitioner when you obtain advice as to the financial agreement. Because of the difficulties associated with drafting a somewhat complicated document, it is strongly recommended you also use your practitioner to draft, or help draft, your financial agreement. This will help ensure it is binding, and offer the mandatory safety to both of you if the relationship fall apart.
by: bfasupport
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