It is apparently a truth universally acknowledged that a single man in possession of a good fortune must be in want of a wife.  These are the famous words spoken by Mrs Bennet in the opening lines of Jane Austen’s Pride and Prejudice.

Regrettably it is also a reality of life that marriages, de facto and same sex relationships often end before “death do us part” and the same “good fortune” must be distributed between two spouses. 

When the family business is a major asset of a relationship, the consequences of the relationship breakdown can be financially devastating.  When the family business is co-owned by other family members, dividing this asset or funding a payout can be time consuming, costly and complex.  Fortunately, family law legislation now provides for the protection of assets including family businesses by way of a “Financial Agreement” between spouses, de facto and same sex couples.

What is a family law Financial Agreement?

A Financial Agreement is a binding contract between the parties to a relationship which deals with how, in the event of a breakdown of the relationship, all or any of the property or financial resources of the parties is to be dealt with.  A Financial Agreement can be entered into before or during a relationship or marriage.  A Financial Agreement can also finalise the financial relationship between parties after a relationship has ended.  Importantly, the Financial Agreement can protect ownership of assets brought into a relationship or acquired during the relationship.  The ownership and retention of a business interest can be protected by the agreement and if necessary the parties to the relationship may make the Financial Agreement with one or more other people.

Why have a family law Financial Agreement?

A binding Financial Agreement has the advantage of providing certainty to protect ownership of assets and to avoid the costs (both financial and otherwise) of Family Court litigation in the event of relationship breakdown.  The Financial Agreement is also binding on the estate of a party in the event of death, if the parties are separated at that time.

Financial Agreements are common between people entering into their second or later long-term relationship.  The agreement can be a means of providing for children of previous relationships.  The agreements are also increasingly common between couples who are placing assets in the name of one spouse as a means of asset protection.  If the relationship ends, the Financial Agreement can acknowledge and protect the financial interest of the other spouse, irrespective of who is recognised as the legal owner of an asset.

How is a Financial Agreement binding?   

For a Financial Agreement to be binding, the following criteria must be met:

1. the agreement must be signed by both parties;
2. the agreement must contain a statement confirming that each party has received independent legal advice about the effect of the agreement on their rights and about the advantages and disadvantages, at the time that the advice was provided, of making the agreement;
3. each party must be provided with a signed statement from their lawyer stating that the abovementioned advice was provided; and
4. a copy of the signed statement from the lawyer must be given to the other party or their lawyer.

The circumstances in which a Financial Agreement may be terminated or set aside are very limited.  A Court may make an order setting aside a Financial Agreement if, for example, the Court is satisfied that the agreement was obtained by fraud or a party has engaged in conduct that is unconscionable.

What happens in the event of separation without a Financial Agreement?

A Financial Agreement offers people in a relationship the opportunity to contract out of the property settlement jurisdiction of the Family Court. 

In the absence of this form of asset protection, the Family Court has extensive powers to divide property and financial resources on the breakdown of a relationship.  The assets of a relationship will usually include any assets held by corporate entities and any interest a person may have in the assets and/or income of a Trust.  The Family Court now has expanded powers to make orders dealing with property owned by third parties including other family members who may have an interest in a family business.

Ms Kym Kerr, family law principal at Talbot Olivier is an Accredited Family Law Specialist accustomed to dealing with all matters arising out of marriage, separation and domestic partnerships.  We are pleased to be of assistance should you have any family law queries and we are happy to provide you with preliminary legal information by telephone or email.