A Financial Agreement can be an effective tool for couples in managing their estate planning. Financial Agreements allow couples to pre-determine what they quantify as a fair distribution of their property and financial resources, in the event of a relationship breakdown, death of one party, or even mental incapacity.
What is a Financial Agreement?
As mentioned above, a Financial Agreement is an effective tool that helps couples determine ownership of assets and/or liabilities of their marriage or de facto relationship. Financial Agreements can also help ensure your affairs are in order for the remainder of your lifetime and after your death, so as to minimise tax burden, maximise the protection of your assets and ensure that the right people ultimately benefit from your wealth.
Are all Financial Agreements binding?
A Financial Agreement must satisfy certain requirements to be binding;
- both parties must sign a Financial Agreement;
- each party must obtain independent legal advice before signing;
- your individual family lawyer must sign a statement confirming they gave you independent legal advice and provide a copy of this to your partner and their solicitor;
- it must be clear that the Financial Agreement has not been terminated by any of the parties and has not been set aside by the court.
To ensure your Financial Agreement is legally binding, we recommend you speak to an experienced family lawyer.
Why is a Financial Agreement beneficial?
Financial Agreements can be beneficial for anyone, especially for:
- Couples who are bringing assets to a new relationship, paticularly in circumstances of a subsequent marriage or de facto relationship. If one or both of the parties have children from a previous relationship, a term can be included in the Financial Agreement stating that assets are to be divided upon one of the parties’ death as if they had separated and the relationship had ended. This sort of provision might also be reflected in your Will.
- Children who are likely to receive a significant inheritance upon their parents’ passing. A Financial Agreement will help preserve an inheritance in the event of a child’s relationship with their spouse or de facto partner ending.
- ‘Generational wealth transfer’ – this can occur where parents are preparing to retire and hand over the family business to their child and their child’s partner. The Financial Agreement in this case might be designed to protect the family business that has been in the family for many years from relationship breakdown.
A Financial Agreement is generally more cost-effective than attempting to negotiate a property settlement and possible court proceedings post-separation. A Financial Agreement will continue to operate despite the death of a party and will operate in favour of, and be binding on, the executor of that party.
For further information on the advantages and disadvantages of a Financial Agreement, we recommend you speak to one of our experienced family lawyers.
How does a Financial Agreement affect your estate?
A Financial Agreement predetermines the financial outcome of a relationship when it breaks down, and consequently removes the discretion of the Court to divide a couple’s assets. This means that parties can enter into a relationship secure in the knowledge that if they separate, each party will preserve and protect what they brought into the relationship. Financial Agreements should also be mirrored in the parties’ respective Wills.
A Financial Agreement binds the estates of married and de facto couples, meaning that if you lose mental capacity or die, your estate is still bound to honour the terms of your Financial Agreement regarding division of your property and financial resources.
Conclusion
A Financial Agreement can serve as a safety net and is an effective tool for estate planning. It may never be needed but will provide a level of certainty if a relationship does come to an end.
There are various requirements that must be met for a Financial Agreement to be legally binding and the area of law regarding Financial Agreements can be complex, this is why we always recommend obtaining legal advice from an experienced family lawyer.
If you or someone you know wants more information or needs help or advice, please contact us on (08) 8344 6422 or email [email protected].