FAMILY LAW ACT 1975

[PARTY 1’S FULL NAME]

and

[PARTY 2’S FULL NAME]

PART VIIIA

FINANCIAL AGREEMENT

PURSUANT TO SECTION 90B

DATED THIS DAY OF 2013

FAMILY LEGAL
Level 2

2 Barrack Street

Sydney NSW 2000

Tel: (02) 9299 6232

Family Legal holds the copyright in this document and this document should not be reproduced, published or used for any commercial purpose except as explicitly authorised by Family Legal. This document should not be taken to constitute legal advice. All Financial Agreements must be reviewed by a solicitor prior to signing. Contact Family Legal for advice on your specific circumstances and to obtain advice about the effect on your rights and responsibilities of this document.
THIS PART VIIIA FINANCIAL AGREEMENT is made on the day of 2013

BETWEEN:

[PARTY 1’S FULL NAME]

of [ADDRESS OF PARTY 1]

(“[FIRST NAME OF PARTY 1]”)

and

[PARTY 2’S FULL NAME]

of [ADDRESS OF PARTY 2]

(“[FIRST NAME OF PARTY 2]”)

RECITALS:

  1. In this Agreement, ‘the parties’ refers to [PARTY 1 (first name)] and [PARTY 2 (first name)].
  1. The parties met and commenced their relationship in [DATE] and are mutually committed to a shared life as a couple living together. The partieswill be married on [DATE] in [LOCATION].
  1. The parties recognise that it is possible that any relationship may break down and therefore wish to avoid any potential dispute about finances if such an event were to occur. The parties wish to enter into a Binding Financial Agreement in contemplation of theirmarriage to preclude claims of any nature relating to financial matters that either party has or may have against the other in the event of separation.
  1. This Agreement is made under Section 90Band in accordance with Section 90Eof the Family Law Act 1975 (as amended) (“the FL Act”) and determines as far as practicablewhat is to be done to the property jointly held by the parties and the maintenance of those parties in the event that the parties’ marriage breaks down.No other Part VIIIAFinancial Agreement is binding upon the parties.
  1. [PARTY 1]was born on[D.O.B. PARTY 1] and is currently aged [AGE] years.
  1. [PARTY 2]was born on[D.O.B. PARTY 2] and is currently aged [AGE] years.
  1. [PARTY 1] is currentlyemployed as a[JOB OF PARTY 1] and earns approximately $[INCOME OF PARTY 1]per annum. [PARTY 2] iscurrently employed as a[JOB OF PARTY 2] and earns approximately $[INCOME OF PARTY 2] per annum.
  1. At the time of making this Agreement,[PARTY 1] has not previously been married or in a de facto relationship.

OR:At the time of making this Agreement, [PARTY 1] was previously [MARRIED TO / IN A DE FACTO RELATIONSHIP WITH] [INSERT NAME]. The [MARRIAGE WAS DISSOLVED BY DECREE OF DIVORCE ON XXXX / PARTIES SEPARATED FROM THEIR DE FACTO RELATIONSHIP ON XXXX] and settlement of the relationship was finalised on [DATE]. There are [NUMBER OF CHILDREN] from [PARTY 1’S] previous relationship [INSERT NAMES, DATES OF BIRTH AND AGES OF CHILDREN AS APPLICABLE] who reside with [DETAILS AS APPLICABLE].

  1. At the time of making this Agreement,[PARTY 2] has not previously been married or in a de facto relationship.

OR:At the time of making this Agreement, [PARTY 2] was previously [MARRIED TO / IN A DE FACTO RELATIONSHIP WITH] [INSERT NAME]. The [MARRIAGE WAS DISSOLVED BY DECREE OF DIVORCE ON XXXX / PARTIES SEPARATED FROM THEIR DE FACTO RELATIONSHIP ON XXXX] and settlement of the relationship was finalised on [DATE]. There are [NUMBER OF CHILDREN] from [PARTY 2’S] previous relationship [INSERT NAMES, DATES OF BIRTH AND AGES OF CHILDREN AS APPLICABLE] who reside with [DETAILS AS APPLICABLE]

  1. There are [NUMBER OF CHILDREN] children of the relationship between the parties, [INSERT NAMES, DATES OF BIRTH AND AGES OF CHILDREN AS APPLICABLE].

OR:There are no children born of the relationship between the parties.

  1. The parties are both in good health[OR OTHER DETAILS AS APPLICABLE].
  1. The assets, liabilities, financial resources and superannuation benefits of each of[PARTY 1] and [PARTY 2]as at the date of this Agreement and their estimated values are identified in the attached Schedules A and B respectively and the joint assets, liabilities, financial resources and superannuation benefits of the parties and their estimated values are identified in the attached Schedule C andeach party declares that:-

(a)they have no interest in property, superannuation or a financial resource and no liability that is not disclosed and described in Schedules A or B or C respectively; and

(b)where an estimate has been provided in Schedules A or B or C it is based on the knowledge, information and beliefs of each or either ofthe parties and is given in good faith.

  1. The parties each warrant that they have provided full and frank disclosure of all relevant assets, financial resources and liabilities in the name of that person in Schedules A, Band C of this Agreement as applicable. Both parties acknowledge that they have been given every opportunity available to them to have valuations undertaken, to seek disclosure of financial documents and to make all due enquiries necessary as to the assets, financial resources and liabilities of the other party and that no requests for information or documents are outstanding as at the date of this Agreement.
  1. The parties have satisfied themselves independently that the estimate approximate values of all items in Schedules A, B and C are accurate. Any difference in opinion between them as to the value of assets, liabilities or superannuation entitlements will not affect the enforceability of this Agreement.
  1. The parties each warrant that other than disclosure herein in Schedules A, B and C, no assets, property or items belonging to either party are encumbered in any nature by caveat, equitable interest, security register interest or otherwise affecting their right, title or interest over any such item.
  1. In reaching this Agreement, the parties have taken into account the following matters:

(a)All assets, liabilities, superannuation entitlements and financial resources listed in Schedule A were acquired by [PARTY 1] prior to the commencement of cohabitation between the parties and independently of and without contribution from [PARTY 2];

(b)All assets, liabilities, superannuation entitlements and financial resources listed in Schedule B were acquired by [PARTY 2] prior to the commencement of cohabitation between the parties and independently of and without contribution from [PARTY 1];

(c)[INSERT DETAILS AS TO HOW EACH PARTY PURCHASED OR ACQUIRED ALL MAJOR ASSETS – E.G. REAL ESTATE];

(d)[INSERT DETAILS AS TO ANY CONTRIBUTIONS TO EACH OTHER’S PROPERTY THAT HAVE BEEN MADE – IF APPLICABLE];

(e)[INSERT DETAILS AS TO THE CIRCUMSTANCES OF THE PURCHASE OF ANY JOINT ASSETS AND ANY CONTRIBUTIONS MADE BY THE PARTIES];

(f)[INSERT DETAILS AS TO INTENTION OF PARTIES IN ENTERING THIS AGREEMENT – E.G. PRESERVATION OF ASSETS FOR CHILDREN];

(g)[INSERT ANY OTHER DETAILS AS RELEVANT TO THE NATURE OF THE AGREEMENT REACHED BETWEEN THE PARTIES].

  1. The parties acknowledge that they may each acquire real or personal property, be in receipt of gifts or inheritances or deal with or dispose of real or personal property at any time in the future and such events will not affect the enforceability or nature of this Agreement.
  1. At the time of this Agreement was entered into by the parties, taking into account what each of them is to receive pursuant to this Agreement, the circumstances of each party are such that they are each be able to support themselves without the need for an income tested pension, benefit or allowance.
  1. The parties wish to define how their property, liabilities, superannuation and financial resources are to be divided and how any maintenance obligations against the other are satisfied if their marriage breaks down, and for this purpose, the parties wish to exclude to the extent permitted by law the provision of Part VIII, Part VIIIAB and VIIIB of the FL Act or any other applicable State or Commonwealth law or otherwise so as to avoid further litigation between them.
  1. In the event that the parties separate in the future, this Agreement sets out what the parties’ respective entitlements will be in terms of property division and their respective maintenance obligations so as to avoid any dispute or legal action in respect of the property of the parties.
  1. The parties each understand that this Agreement, once executed by each of them, will be binding upon them and, pursuant to Section 71A of the FL Act, thereby prevent any Court of competent jurisdiction from making Orders in respect of the property interests or maintenance of either party under Part VIII of the FL Act or otherwise.
  1. At the date of this Agreement, no other Part VIIIA Agreement is in force between the parties pursuant to Section 90B, 90C or 90D of the FL Act or otherwise and there are no legal proceedings before any Court involving the parties.
  1. The parties have agreed not to enter a superannuation agreement under Section 90MHA of the FL Act or otherwise in relation to the superannuation interests of either party [IF PARTIES INTEND TO SPLIT SUPERANNUATION – AMEND THIS PARAGRAPH ACCORDINGLY AND INCLUDE CLAUSES AS TO THE SUPER SPLIT]
  1. In consideration of the property and entitlements to be received by each of the parties pursuant to the provisions of this Agreement and except as otherwise provided for in this Agreement, each of [PARTY 1] and [PARTY 2] has agreed to waive for all time his or her right to seek maintenance from the other party whether by way of lump sum, periodic, capitalised amount or otherwise.
  1. At the time this Agreement was entered into between the parties, the circumstances of each party are such that they are each able to support themselves without the need for an income-tested pension, benefit or allowance. [DELETE PARAGRAPH IF EITHER PARTY IS IN RECEIPT OF AN INCOME-TESTED PENSION, BENEFIT OR ALLOWANCE – PARAGRAPHS Z, AA BELOW]
  1. [PARTY 1] acknowledges that as at the date of this Agreement, [HE/SHE]is in not reliant on an income-tested pension, benefit or allowance.

OR:[PARTY 1] acknowledges that as at the date of this Agreement, [HE/SHE] is in receipt of an income-tested payment of $[AMOUNT BEING RECEIVED] by way of [TYPE OF PAYMENT – e.g. NEWSTART ALLOWANCE / FAMILY TAX BENEFIT].

  1. [PARTY 2] acknowledges that as at the date of this Agreement, [HE/SHE] is not reliant on an income-tested pension, benefit or allowance.

OR:[PARTY 2] acknowledges that as at the date of this Agreement, [HE/SHE] is in receipt of an income-tested payment of $[AMOUNT BEING RECEIVED] by way of [TYPE OF PAYMENT – e.g. NEWSTART ALLOWANCE / FAMILY TAX BENEFIT].

  1. As at the date of this Agreement, neither party is currently bankrupt or a debtor in bankruptcy proceedings and there are no proceeds of crime or current forfeiture applications in relation to the property of either party.
  1. Both parties acknowledge that:-

(a)they are signing this Agreement after careful consideration;

(b)they have not relied on any representation or promise in making this Agreement except those expressly stated in the Agreement;

(c)they have signed this Agreement of their own free will and volition, and no coercion, force or undue influence was used to bring about the acceptance of the terms of this Agreement or with respect to the signing of this Agreement; and

(d)the terms of this Agreement are satisfactory to them.

  1. Before each party signed this Agreement they received separate independent legal advice from a legal practitioner as to: -

(a)the effect of the Agreement on that party’s rights; and

(b)the advantages and disadvantages at the time the advice was provided to the party of making the Agreement.

THIS AGREEMENT PROVIDES:

  1. That the parties agree that this Agreement is intended to be a Binding Financial Agreement and is made pursuant to Section 90B of the Family Law Act 1975 with the intention that it shall as far as practicable determine how the assets, liabilities, superannuation and financial resources of the parties will be distributed and the maintenance of those parties in the event that the parties separate and in doing so, this Agreement is intended to operate in substitution of all rights of either party to seek an alteration of property interests or maintenance pursuant to Part VIII of the FL Act or otherwise.
  1. That in consideration of the mutual promises contained in this Agreement, the parties agree to and covenant as follows: -

2.1the recitals to this Agreement forming part of this Agreement; and

2.2this Agreement being binding upon the heirs, executors, administrators and assigns of each party.

  1. That the parties will execute any authority, release, instrument and any other document and do all such acts and things which may be necessary to give full force and effect to the operation of this Agreement and in the event that either party fails to do so within fourteen (14) days of being so requested, each party consents to any application filed by the other seeking an Order that the Registrar of the Family Court of Australia at [REGISTRY] be empowered to sign or execute any document on behalf of either party.
  1. That during the course of the marriage, the parties agree to contribute to the everyday living expenses of the parties as agreed from time to time and the nature or extent of such contributions will not effect the application or enforcement of any provision of this Agreement.

Separate Assets

  1. That [PARTY 2] agrees that [HE/SHE] has made no contribution of a financial nature to the acquisition, conservation or improvement of the property of [PARTY 1] as set out in Schedule A and that [HE/SHE] is not entitled to any benefit or gain from any property listed in Schedule A.
  1. That [PARTY 1] agrees that [HE/SHE] has made no contribution of a financial nature to the acquisition, conservation or improvement of the property of [PARTY 2] as set out in Schedule B and that [HE/SHE] is not entitled to any benefit or gain from any property listed in Schedule B.
  1. That each party is hereby declared the sole legal and equitable owner to the exclusion of the other party of all assets, liabilities and financial resources in the name or possession of that party as at the date of this Agreement or acquired by that party in their sole name after the execution of this Agreement, including, but not limited to, real and personal property, monies in bank, credit union or building society accounts, interests in a business or trust, superannuation interests, life insurance policies, shares in publicly-listed or proprietary limited companies, inheritances, gifts, compensation claims or windfall gains.
  1. That subject to any provision of this Agreement, in the event that the parties separate, the following assets, liabilities, superannuation entitlements and financial resources shall remain the property of each party respectively (“the separate assets”) to the exclusion of the other such that each party relinquishes all rights, title or interest in the other party’s separate assets and agrees to make no claim of any nature in respect of the other party’s separate assets:-

8.1the individual assets, liabilities, superannuation entitlements and financial resources of each party as set out in Schedules A and B respectively;

8.2any other property, resource, interest or liability acquired individually before or after the execution of this Agreement in that party’s sole name using the income or assets of that party;

8.3individual earnings, salaries or wages paid before or after the execution of this Agreement; and

8.4any and all individual gifts, bequests, inheritances or devises acquired individually by each party before or after the execution of this Agreement.

  1. That in the event that the parties separate for any reason, as evidenced by one or both parties executing a separation declaration in accordance with Section 90DA of the FL Act, the following shall apply:-

9.1each party shall retain and be solely entitled to the separate assets in the name of that party absolutely to the exclusion of the other;

9.2each party forgoes any claim they may have had, past or future, in law or in equity against the separate assets of the other party;

9.3any debts or liabilities in the name of either party are to remain the responsibility of that party exclusively and each party is to indemnify and keep indemnified the other in respect of the same;

9.4any insurance policy is to become the sole property of the beneficiary named therein;

9.5each party forgoes any claim they may have had, past or future, to any gifts or inheritance, redundancies or windfall gains to which the other party is entitled at any time;

9.6any joint tenancy of the parties in any real or personal property is expressly severed in accordance with this Agreement;

9.7any duty, capital gains tax or other liability that becomes payable as a consequence of this Agreement shall be payable by the party receiving the property or benefit from the relevant transaction; and

9.8subject to the following provisions, any joint assets are to be shared equally between the parties.

  1. That the parties otherwise agree and acknowledge that each shall be solely responsible for any and all ongoing maintenance, costs and outgoings (including, but not limited to, mortgage repayments, rates and taxes) in respect of their separate assets respectively without recourse to the other party.
  1. That any contribution, whether financial or non-financial, by a party towards the costs of, use, enjoyment, maintenance or upkeep of any of the separate assets of the other party does not create any right or interest or other entitlement for the contributing party in that asset.
  1. That each party is entitled to dispose of their separate assets, financial resources, superannuation entitlements or liabilities at any time by deed, will, sale or otherwise as they see fit.
  1. That the parties acknowledge that they have no entitlement to any profit, income or financial gain from any asset, financial resource or superannuation interest of the other party and that any proceeds of sale of any separate asset or financial resource belonging to a party are to be retained by that party alone.
  1. That the parties acknowledge that they are personally responsible for any liability, loss, debt, bill or account connected to any separate asset in that party’s name or possession and will indemnify and keep indemnified the other in respect of same.
  1. That any liability or debt in the name of either party as at the date of this Agreement and any liability or debt incurred by either party individually during the course of the marriage will remain the separate responsibility of each party respectively and each party will indemnify and keep indemnified the other party in respect of same.
  1. That any asset, financial resource or superannuation entitlement acquired by either party individually during the course of the marriage shall be recorded in writing as being the asset, financial resource or superannuation entitlement of that party and subject to the terms of this Agreement such that the other party shall make no claim at law or in equity to any such asset, financial resource or superannuation entitlement.
  1. That nothing in this Agreement prevents either party from voluntarily making gifts to the other party, acquiring the interest of the other in any individually or jointly owned property, selling any item to the other party or making provision for the other party by will, codicil, trust or otherwise and that such an act shall not be construed as being a waiver from any provision of this Agreement or as evidence of any agreement between the parties other than the provisions specifically contained within this Agreement.

Joint Assets