Simple unilateral quarantine (de facto, including same sex, relationship)
PART VIIIAB FINANCIAL AGREEMENT
THIS AGREEMENT is made the day of 2017
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 in contemplation of entering into a defacto relationship under Section 90UB of the Family Law Act 1975 (“the Act”).
OR
This Part VIIIAB financial agreement is made while in a de facto relationship under Section 90UC 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 to enable [X/Y], for the future benefit of the children of their previous marriage [or identify any other intended beneficiary], to preserve from future claim by the other certain special assets, and to limit the agreement to that purpose.
D. X was born on [date] and Y was born on [date].
E. The parties are contemplating entering into a de facto relationship with each other.
OR
The parties are living together in a de facto relationship.
F. The parties have no children to each other.
OR
The parties have [number] children to each other, namely:
(a) [full name of child] born [date];
(b) [full name of child] born [date].
G. 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 [date].
OR
The parties have no children of previous marriages or de facto relationships.
H. X is a [occupation] with a gross income of about $[amount].
I. X’s assets, liabilities and financial resources are set out in Schedule A of this Agreement.
J. Y is a [occupation] with a gross income of about $[amount].
K. Y’s assets, liabilities and financial resources are set out in Schedule B of this Agreement.
L. Each party acknowledges that they are entering into this Agreement of their own free will.
M. 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 received 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. The following property will remain the property of [X/Y] free from any future claim by [Y/X] as an asset of [X/Y]:
(a) [specify the property being 'quarantined']
3. The financial relationship of the parties in the event of the breakdown of their de facto relationship will be otherwise finalised as agreed between them through reasonable negotiation or as governed by Part VIIIAB of the Act, including the pre-action procedures for financial matters (property settlement and spousal maintenance) set out in Part 1 of Schedule 1 of the Family Law Rules.
4. This agreement will take effect from the date of signing of the attached separation declaration and will continue until terminated by another written agreement of the parties. If either party dies during the subsistence of the de facto relationship the agreement will instead take effect from the time of such death.
5. The Agreement will be binding upon the personal representatives, legal representatives, trustees, executors and administrators of each party or their estate.
6. This is not an agreement as to maintenance to which Section90UH of the Act applies.
7. [Delete this clause if Agreement is not in contemplation of entering into a de facto relationship] This Agreement shall be void if the parties do not marry within 12months after the date of this Agreement.
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
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:
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:
X
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:
Y
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 declaration to be a statutory declaration, but this form lends proper formality to what is an important document.
For a s90UB (pre-relationship) or s 90UC (relationship) agreement, the separation declaration should remain unsigned until the parties separate. In the case of a s 90UD agreement (after relationship breakdown), the 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); s 90A(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.]