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Family Law

Financial Agreements Lawyers

Contracting out of the court's property jurisdiction — before, during or after a relationship. Strict formal requirements, and they are strictly applied.

What a financial agreement does

A binding financial agreement allows a couple to contract out of the court's property jurisdiction and decide for themselves how assets will be divided. Where one is valid and binding, the court cannot make property orders inconsistent with it.

That is a significant power, which is why the formal requirements are strict. Unlike consent orders, a financial agreement is never assessed by a court for fairness. It can be one-sided and still be binding.

When they are used

Agreements can be made at any stage; the label depends on when.
TimingCommonly calledTypical purpose
Before marriage or cohabitationPrenuptial / cohabitation agreementProtecting pre-existing assets, a business, or children's inheritance
During the relationshipPostnuptial agreementRecording a change, an inheritance, or a restructure
After separationSeparation agreementDocumenting a settlement without a court order

They are most valuable where one party brings substantially more into the relationship, where there are children from a previous relationship whose inheritance needs protecting, where a family business or farm should stay in the family, or in a second relationship later in life.

The formal requirements

Both parties need independent legal advice

Before signing, each party must receive independent legal advice about the effect of the agreement on their rights, and about its advantages and disadvantages. Each lawyer must then sign a statement confirming that advice was given, and each party must receive a copy of that statement.

Independent means genuinely separate lawyers — not two lawyers from the same firm, and not one lawyer advising both. This is where agreements most often fail.

The requirement is not a formality to be processed. A lawyer asked to sign a statement for a party who has been given no time, no disclosure and no real opportunity to reconsider is being asked to create a document that may not survive.

When agreements fail

The court can set aside a financial agreement on defined grounds, and does. The common ones:

  • The formal requirements were not met
  • The agreement was obtained by fraud, including non-disclosure
  • It is void, voidable or unenforceable at general law
  • Circumstances have made it impracticable to carry out
  • A material change relating to a child causes hardship
  • Unconscionable conduct in the making of it
  • Duress, undue influence or unconscionability

Timing and pressure are the recurring theme. An agreement presented days before a wedding, to a party with no realistic ability to walk away, is the classic set-aside case. If you want an agreement to hold, start months in advance, disclose fully, and give the other party genuine time and independent advice.

Considering an agreement? Start early. Agreements rushed before a wedding are the ones that fail.
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Agreement or consent orders?

After separation, both routes are available and they are genuinely different.

Option 1

Consent orders

Approved by the court, which must be satisfied the outcome is just and equitable. Enforceable as orders. Cheaper, and much harder to unwind.

Suits most separating couples

Option 2

Financial agreement

A private contract with no court approval and no fairness assessment. More flexible, more expensive, and more vulnerable to being set aside.

Suits privacy, or terms a court wouldn't approve

We will tell you which fits. For a straightforward separation, consent orders are usually the better instrument, and we say so even though the agreement is the larger job.

What it costs

  • Fixed fee to draft an agreement
  • Fixed fee to advise and certify for a receiving party
  • Each party must pay their own lawyer
  • Consent orders usually cost less
  • Set-aside applications quoted separately
  • Honest advice on which instrument fits

Frequently asked questions

Yes, as binding financial agreements under the Family Law Act 1975 (Cth), provided the strict formal requirements are met. Each party must receive independent legal advice about the effect of the agreement and its advantages and disadvantages, and each lawyer must sign a statement confirming that advice was given.

Yes, on defined grounds including failure to meet the formal requirements, fraud including non-disclosure, duress or undue influence, unconscionable conduct, circumstances making it impracticable to carry out, and material changes relating to a child causing hardship. Agreements signed under time pressure shortly before a wedding are the classic set-aside case.

No. Unlike consent orders, where the court must be satisfied the outcome is just and equitable, a financial agreement is never assessed by a court for fairness. It can be substantially one-sided and still be binding, which is precisely why independent legal advice for both parties is mandatory.

No. Each party must receive genuinely independent legal advice, which means separate lawyers — not two lawyers from the same firm and not one lawyer advising both. Failure on this point is one of the most common reasons agreements are set aside.

For most separating couples, consent orders are the better instrument: they are approved by the court, enforceable as orders, generally cheaper and much harder to unwind. Financial agreements suit situations where privacy matters, or where the parties want terms a court might not approve.

More information

Wanting to protect your assets in the event that your relationship fails? We can assist.

Financial agreements lawyers Rockhampton

Financial Agreements (sometimes referred to as “pre nuptial agreements”) are private agreements that do not need the review of the Court. These agreements deal with how a couple intends to divide their property and superannuation in the event of separation or after separation has occurred. They can also include any agreement reached regarding spouse maintenance.

Financial agreements are regularly associated with the rich and famous.  However, they can be a very practical step to protect the assets of the parties’ entering a marriage or a de facto relationship, in the event of a relationship breakdown.

A Financial Agreement can be entered into:

  • Before marriage or before living together;
  • During marriage or during a de facto relationship;
  • After separation; or
  • After divorce.

Start your family law matter online — privately and at your own pace

Not quite ready to pick up the phone? You can begin online instead. Answer a few simple questions about your situation in your own time, and our experienced family lawyers will review your details before your first appointment — so your meeting is focused on you, not paperwork.

Financial agreements are very complex legal documents and can only be completed with lawyer involvement, as each party’s lawyer must sign a statement confirming the required independent legal advice was given.

When a Financial Agreement is drafted and entered into correctly, it will be considered binding and the setting aside of such an agreement can be a difficult and usually expensive process.

We can provide you with advice about whether a Financial Agreement may be appropriate in your circumstances and assist you to ensure your agreement is properly documented to minimise the risk of a dispute if separation occurs.

We recommend you contact our family lawyers Rockhampton to get an understanding of your potential obligations or entitlements of a financial agreement.

We can also assist with:

Flexible Legal Financing for Family Law Matters

South Geldard Lawyers has proudly partnered with JustFund to offer our clients greater financial independence, particularly through family law litigation funding. For some clients, it can be a struggle to afford legal fees and disbursements, and limited access to funding sometimes means the settlement process stalls and clients get stuck. This partnership enables our clients to access the legal assistance they deserve to settle their family law matters and move on with their lives without the burden of immediate financial constraints.

Extensive Experience

Our professional team has extensive experience in a wide range of legal areas. Our approach is one of planning and involvement. We will continue to be there to support you with accurate and timely advice.

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