A divorce lawyer can advise you of the various provisions in the Family Law Act 1975 (Cth) that allow for the protection of financial resources and matters. Often, when parties enter a relationship there is a discussion about financial resources; how they are to be used in the relationship or how they will be used for the maintenance of children to come from the relationship.
To account for these considerations, a financial agreement can be drafted by a divorce lawyer and signed by the parties. This type of document is a legally enforceable tool that provides a set of conditions for the distribution and future use of monies.
What is considered a financial matter?
The law outlines what conditions are considered to be a financial matter, however a divorce lawyer should recognise that the status of the relationship (i.e. if there is a marriage or not) will determine which provision of the act applies.
In the case of a marital relationship, parties can include matters that relate to the following:
- The maintenance of one of the parties; or
- The property of those parties or of either of them; or
- The maintenance of children of the marriage.
If the relationship is de facto then the following may be considered:
- The maintenance of one of the parties; or
- The distribution of the property of the parties or of either of them; or
- The distribution of any other financial resources of the parties or of either of them.
What is the agreement is made prior to marriage but signed after?
A recent decision in the Federal Circuit and Family Court of Australia considered the importance of timing when drafting and signing a financial agreement. In Carran [2022] FedCFamC2F 818, a s 90B financial agreement was first prepared by a divorce lawyer prior to the parties’ marriage. However, it was not signed until afterwards.
The judge recognised an error in applying the provisions of s 90B(1)(a) which emphasises parties must simply ‘contemplate’ entering a marriage. Instead, the parties had actually been married by the time the agreement was finalised and therefore this contravened the applicability of s 90(B)(1)(a). The more appropriate avenue should have been with reference to s 90C.
His honour said:
“The erroneous reference to s 90B, almost certainly a product of human error by the parties’ solicitors, prevents that common intention from properly manifesting in the written instrument.”
It is therefore crucial to seek a divorce lawyer who will recognise the subtle differences in family law provisions so that no discrepancies arise when enforcing a financial agreement.
