Termination of binding financial agreements


Family Law Act 1975: Section 90J:

Termination of financial agreement

    (1)  The parties to a financial agreement may terminate the agreement only by:

          (a)  including a provision to that effect in another financial agreement as mentioned in                                 subsection 90B(4), 90C(4) or 90D(4); or

          (b)  making a written agreement (a termination agreement) to that effect.

     (2)  Subject to subsection (2A), a termination agreement is binding on the parties if, and only if:

          (a)  the agreement is signed by all parties to the agreement; and

          (b)  before signing the agreement, each spouse party was provided with independent legal                         advice from a legal practitioner about the effect of the agreement on the rights of that party                   and about the advantages and disadvantages, at the time that the advice was provided, to                   that party of making the agreement; and

          (c)  either before or after signing the agreement, each spouse party was provided with a signed                   statement by the legal practitioner stating that the advice referred to in paragraph (b) was                     provided to that party (whether or not the statement is annexed to the agreement); and

                (ca)  a copy of the statement referred to in paragraph (c) that was provided to a spouse                                 party is given to the other spouse party or to a legal practitioner for the other spouse                             party; and

           (d)  the agreement has not been set aside by a court.

    (2A)  A termination agreement is binding on the parties if:

            (a)  the agreement is signed by all parties to the agreement; and

            (b)  one or more of paragraphs (2)(b), (c) and (ca) are not satisfied in relation to the                                     agreement; and

            (c)  a court is satisfied that it would be unjust and inequitable if the agreement were not binding                   on the spouse parties to the agreement (disregarding any changes in circumstances from                     the time the agreement was made); and

            (d)  the court makes an order under subsection (2B) declaring that the agreement is binding on                    the parties to the agreement; and

            (e)  the agreement has not been set aside by a court.

    (2B)  For the purposes of paragraph (2A)(d), a court may make an order declaring that a                                termination agreement is binding on the parties to the agreement, upon application (the                         enforcement application) by a spouse party seeking to enforce the agreement.

    (2C)  To avoid doubt, section 90KA applies in relation to the enforcement application.

       (3)  A court may, on an application by a person who was a party to the financial agreement that                   has been terminated, or by any other interested person, make such order or orders (including               an order for the transfer of property) as it considers just and equitable for the purpose of                       preserving or adjusting the rights of persons who were parties to that financial agreement and               any other interested persons.

              Note:      For the manner in which the contents of a financial agreement may be proved, see                 section 48 of the Evidence Act 1995.

Please call AussieLegal on 1300 728 200 for more information on Binding Financial Agreements under Australian lawfor a fixed price of $1,875.00 including legal advice and certification from 2 independent family law solicitors.