Formalising your Agreement
Once discussions and negotiations have resulted in an agreement, the parties’ next step is to decide how they wish to record their agreement.
Some options available to the parties include:
There is no legal requirement that separated parties must formalise their agreement in a particular manner. Many separated parties make arrangements between themselves.
There are many advantages in having an agreement formalised in writing and in a form that is enforceable. Some clear benefits include:
One significant advantage of having a formalised agreement is that the parties’ arrangements are finalised. This in turn allows the parties to plan their future with a higher degree of confidence and certainty.
A financial agreement is an agreement that is made under the Family Law Act and satisfies the requirements of the legislation.
A binding financial agreement can be made:
Binding financial agreements can deal with assets and financial resources acquired before the relationship, during the relationship or after separation.
One main advantage of a binding financial agreement is that it can be used to exclude spousal maintenance. This cannot be achieved by way of a court order by consent.
If spousal maintenance is a real issue when negotiating consent orders one option available to the parties is to exclude spousal maintenance by entering into a binding financial agreement in conjunction with the consent orders.
The Family Law Act sets out numerous formal requirements in order for a binding financial agreement to be valid and binding.
A binding financial agreement is a private agreement which does not go through the court system to be approved. This can be an advantage and a disadvantage. Each party must be represented by an independent solicitor who must provide a legal advice certificate.
Although there will be situations where a binding financial agreement would be beneficial, it is generally considered by family law practitioners that a binding financial agreement is not as final as having a court order.
Setting Aside a Financial Agreement
A court may make an order setting aside a financial agreement or a termination agreement if:
“I wish to thank you for all your efforts on our behalf. Simply thanking you doesn’t cover the difference your help has made, not only to our lives, but importantly to the long term prospects for [name of child removed].
The work you have put in and, I believe, the emotion you invested, goes way beyond the solicitor-client contract. We are enormously grateful.”
[Name of grandparents in Brisbane removed, 19 June 2020]
This case involved both family law and domestic violence.
“Dear Duc and the staff at Freeman Lawyers
Your dedication to clients and the hard work you’ve done for me almost daily has not gone unnoticed and will never be forgotten.
This went on for me for a long time and thank you for all the hours and work you put in to win this for me and [name of child removed].
I always had complete faith you would deliver me the best outcome.”
[Mother/Wife in Brisbane, June 2020]