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A Financial Agreement (sometimes referred to as a pre-nuptial agreement) can set out how your assets including your superannuation can be divided on separation.
A Financial Agreement can be entered into:-
- If you are in a de facto relationship and you want to set out what happens to your assets in the event you and your partner separate in the future;
- If you are planning to get married and you want to set out what happens to your assets in the event that you separate after you are married;
- If you are already married and you want to set out what happens to your assets in the event that you separate in the future;
- If your relationship has ended and you want to set out what happens to your assets, and would prefer not to have consent orders finalise the division of your assets.
In addition to setting out how assets are to be divided, a Financial Agreement can include whether spousal maintenance is to be paid (and the parameters around payment). The Financial Agreement can be as detailed as necessary in your circumstances.
Can a Financial Agreement be set aside?
A Financial Agreement is a special kind of contract. It is a formal document that needs to be very carefully prepared. If the Financial Agreement is not prepared, documented and then executed in accordance with strict requirements, it may be determined the Agreement is not worth the paper it is written on and be set aside. You would then have to commence negotiations as to your property settlement as though no agreement was in place.
Further, there are circumstances where a party no longer wishes to be bound by the Financial Agreement and may try to invalidate the Financial Agreement at the end of the relationship. There have been many court cases which have considered and determined the circumstances in which the court will set aside a Financial Agreement. The crux of these decisions of the court is that if you are not going to carefully and patiently enter into a Financial Agreement, you may be wasting your time preparing one at all.
You should obtain advice regarding the preparation and drafting of a Financial Agreement. It may be that you receive the advice and decide not to proceed with a Financial Agreement, but take other steps to protect your financial interests in the event you separate in the future. It is important you understand your options to allow you to make an informed decision.
Please contact our office should you wish to discuss your options regarding a Financial Agreement with one of our experienced family lawyers.