Sample of Financial Agreement As Release of Spousal Maintenance

Financial agreement as release of maintenance (de facto, including same sex, relationship)

Note – This (post-separation) agreement is recommended as a release from future maintenance as s 90SI allows an order to that effect to be set aside. As to property issues, we recommend that you use consent orders (filed at the same time as the financial agreement is made).

We do so because a property order is generally harder to set aside (under the lesser scope of s90SN) than a financial agreement (which runs the gauntlet of ss 90UJ, 90UM and 90UN) and for stamp duty reasons too.In Queensland, for example, the identity of the transferee under an order is irrelevant for stamp duty exemption whereas OSR (Qld) guidelines for transfers under a financial agreement require stamp duty to be paid by a non-spouse transferee.

PART VIIIAB FINANCIAL AGREEMENT

THIS AGREEMENT is made the...... day of...... 2019

BETWEEN:[name]

of [address]

(in this Agreement called “X”)

AND:[name]

of [address]

(in this Agreement called “Y”)

RECITALS

A.This Part VIIIAB financial agreement is made after the breakdown of a de facto relationship under Section 90UD of the Family Law Act 1975 (“the Act”).

B.At the time of making this agreement the parties are ordinarily resident in the [State/Territory] of [insert], being a participating jurisdiction under Section90UA of the Act.

C.The purpose of this Agreement is for it to operate as a release of each party from any future claim by the other for maintenance under Section 90SA of the Act in exchange for a satisfactory property settlement for both parties.

D.X was born on [date] and Y was born on [date].

E.The parties began living together in a de facto relationship on [date].

F.Their relationship broke down on [date] when the parties separated.

G.The parties have no children to each other.

The parties have [number] children to each other, namely:

(a)[full name of child] born [date];

(b)[full name of child] born [place].

H.The parties have the following children of [previous marriages/de facto relationships - specify]:

(a)[full name of child] born [date];

(b)[full name of child] born [place].

The parties have no children of previous marriages or unmarried relationships.

I.X is a [occupation] with a gross income of about $[amount].

J.X’s assets, liabilities and financial resources are set out in Schedule A of this Agreement.

OR[if a Financial Statement has been filed by him recently in court]

X’s financial circumstances are set out in the Financial Statement filed by him on[date of filing].

K.Y is a [occupation] with a gross income of about $[amount].

L.Y’s assets, liabilities and financial resources are set out in Schedule B of this Agreement.

OR[if a Financial Statement has been filed by her recently in court]

Y’sfinancial circumstances are set out in the Financial Statement filed by her on [date of filing].

M.The parties have agreed to finalise all financial matters in dispute between them as set out in the Consent Order a true copy of which is attached.[Note – Change “the Consent Order a true copy of which is attached.” to “this Agreement.” if instead of filing consent orders for the property settlement the terms of settlement are set out in this agreement. BUT see our recommendation at the beginning of this precedent. If you nevertheless wish to incorporate your property settlement terms here, insert them immediately before clause 1 below, after “IT IS AGREED THAT”.]

N.Taking into account the terms and effect of this Agreement, neither party at the date of this Agreementis unable to support themselves without an income tested pension, benefit or allowance within the meaning of s90UI(2) of the Act.[Note – If a party does receive such a benefit (e.g. an income tested carer’s payment) but is not unable to support himself/herself without it (due to being fully supported by other income), add: [Identify party] receives a [type of benefit] but is not unable to support himself/herself without it as he/she is fully supported by his/her income as a [specify occupation or type of income that does support the party.] This should then avoid s 90UI(2) coming into play.]

O.[If parties have children to each other]This Agreement does not change the obligation of either party to support a child of the parties.

P.Each party acknowledges that they are entering into this Agreement of their own free will.

Q.At the time of making this Agreement the parties are not the spouse parties to any other Part VIIIAB financial agreement.

IT IS AGREED THAT:

1.The parties agree and acknowledge that:

(a)Before signing this Agreement and as certified in an annexure to this Agreement, X independent legal advice from a legal practitioner as to:

(i)the effect of this Agreement on X’s rights; and

(ii)the advantages and disadvantages, at the time of that advice, of X making the Agreement.

(b)Before signing this Agreement and as certified in an annexure to this Agreement, Y received independent legal advice from a legal practitioner as to:

(i)the effect of this Agreement on Y’s rights; and

(ii)the advantages and disadvantages, at the time of that advice, of Y making the Agreement.

2.Each party covenants that this Agreement will constitute a complete release of the other party from any future claim for maintenance and is made in substitution of their respective rights to make a claim for maintenance under Part VIIIAB of the Act.

3.This Agreement will take effect from the date on which the attached separation declaration is signed.OR (if the agreement is subject to the filing of a consent property order as per Recital M) This Agreementis conditional upon and will come into effect from the making of the consent order referred to in Recital M.

4.The Agreement will be binding upon the personal representatives, legal representatives, trustees, executors, administrators of each party or their estate.

5.This is an agreement as to maintenance to which Section90UH of the Family Law Act applies. Each party is to pay the total sum of $1 for the future maintenance of the other party, receipt of which is hereby acknowledged by the parties.

SIGNED by the said X)......

[full name])

this day of ...... )

in the presence of:)

......

Justice of the Peace/Solicitor

SIGNED by the said Y)......

[full name])

this day of ...... )

in the presence of:)

......

Justice of the Peace/Solicitor

SCHEDULE A

X’s assets, liabilities and financial resources and their estimated value are as follows:

Item / Estimated Value
ASSETS
Total / $
FINANCIAL RESOURCES (INCLUDING SUPER)
LIABILITIES

SCHEDULE B

Y’s assets, liabilities and financial resources and their estimated value are as follows:

Item / Estimated Value
ASSETS
Total / $
FINANCIAL RESOURCES (INCLUDING SUPER)
LIABILITIES

Family Law Act 1975

CERTIFICATE UNDER SECTION 90UJ(1)(c)

I ......

of ......

...... in the State/Territory of [specify], Legal Practitioner, certify that before this Agreement between [name] and [name] was signed by [name] (“my client”), I provided my client with independent legal advice as to the following matters:

1)the effect of the Agreement on my client's rights, and

2)the advantages and disadvantages to my client of making the Agreement at the time my advice was provided.

DATED:......

SIGNED:......

Family Law Act 1975

CERTIFICATE UNDER SECTION 90UJ(1)(c)

I ......

of ......

1)the effect of the Agreement on my client's rights, and

2)the advantages and disadvantages to my client of making the Agreement at the time my advice was provided.

DATED:......

SIGNED:......

ACKNOWLEDGMENT

I, X, hereby acknowledge receipt of a copy of a signed financial agreement between me and Y dated [date] which annexes a copy of a written statement from a legal practitioner stating that prior to signing the agreement, Y received independent legal advice about the effect of the agreement on [his/her] rights and the advantages and disadvantages, at the time the advice was provided, to [him/her] making the Agreement.

DATED:......

SIGNED:......

I, Y, hereby acknowledge receipt of a copy of a signed financial agreement between me and X dated [date] which annexes a copy of a written statement from a legal practitioner stating that, prior to signing the agreement, X received independent legal advice about the effect of the agreement on [his/her] rights and the advantages and disadvantages, at the time the advice was provided, to [him/her] making the Agreement.

DATED:......

SIGNED:......

Separation declaration

in accordance with Section 90UF of the Family Law Act 1975

I, [full name] [X/Y] make the following declaration in relation to the attached financial agreement:

1.I am a spouse party to the Agreement.

2.The spouse parties lived in a de facto relationship.

3.The spouse parties have separated and are living separately and apart at the time of this declaration.

4.In my opinion there is no reasonable likelihood of cohabitation being resumed.

AND I MAKE this solemn declaration conscientiously believing it to be true and by virtue of the provisions of the [name of Act under which statutory declarations are made in your State or Territory].

SIGNED by the declarant )......

[full name])

at [place])

this day of ...... )

in the presence of:)

......

Justice of the Peace/Solicitor

Note – The Act does not require the separation declaration to be a statutory declaration, but this form lends proper formality to what is an important document.

This declaration should be signed at the same time as the agreement itself.

A de facto couple may only make this (Part VIIIAB) financial agreement if they were ordinarily resident in a participating jurisdiction when they made the agreement (i.e. as at 1 July 2010, not in WA): s 90UA

An agreement made in a non-referring State can be accepted as a Part VIIIAB financial agreement if that State becomes a participating jurisdiction (as SA did on 1 July 2010). See s 90UE.

A de facto couple may not make this agreement if their relationship broke down before 1 March 2009 (when Part VIIIAB commenced): s 86 of Part 2 (transitional provisions) of Schedule 1 of the Amendment Act (Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (No. 115 of 2008)).

Such a couple may opt into the new regime, however, if the agreement complies with s 86A of Schedule 1 of the Amendment Act by including:

a recital (place it between recitals B and C) “The parties’ de facto relationship broke down before 1 March 2009, the commencement of Part VIIIAB, but are choosing for that Part to apply in relation to their relationship under Section 86A.”

two separate recitals (place it at the end of the recitals) “No order has been made in a State or Territory as referred to in Section 86A(3).” and “The parties have not made a State or Territory financial agreement as referred to in Section 86A(4)(a).” OR “The parties have made a State or Territory financial agreement, but that agreement has ceased to have effect without any property being distributed or any maintenance being paid under the agreement as referred to in Section 86A(4)(b).”

a clause (place it before Clause 1) “The parties unconditionally and irrevocably choose for Part VIIIAB to apply in relation to their de facto relationship.”

an amendment to paras (a)(ii) and (b)(ii) of the next clause (the parties’ acknowledgment of each receiving independent legal advice) by adding after “making the Agreement” the words “and the choice for Part VIIIAB to apply under Section 86A(5)(b)(i).”

an amendment to para 2 of both lawyer certificates attached to the agreement by inserting after “making the Agreement” the words “and the choice for Part VIIIAB to apply under section 86A(5).”

an amendment to the title of both lawyer certificates by adding after the section number the words “AND SECTION 86A(5)(b)(ii)”

[Note – For opting in where a de facto relationship broke down before a non-referring State became a participating jurisdiction the above applies, except substitute the following sections for those numbered above: s 90A for s 86A; s 90A(3) for s 86A(3); s 90A(4)(a) for s 86A(4)(a); s90A(4)(b) for s 86A(4)(b); s 90A(5)(b)(i) for s 86A(5)(b)(i); and s 90A(5)(b)(ii) for s 86A(5)(b)(ii).

This applies to SA which referred its de facto powers on 1 July 2010.]