David Gawthorne is a Solicitor at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law
Family Law Financial Agreements can be made by a couple before, during or after a marriage or de facto relationship, specifying the way that their property will be dealt with after separation or providing for maintenance payments. Of course, such agreements made before a marriage are often referred to as prenuptial agreements or “pre-nups”.
Importantly, a Financial Agreement that is “binding” ousts the jurisdiction of courts to make property or maintenance orders. This means that arrangements agreed to in advance by a couple for property settlement or maintenance replace the power of a court to decide what is just and equitable for them. Importantly, for a Financial Agreement to be “binding”, each member of the couple must receive independent legal advice on how the agreement affects their rights and any advantages and disadvantages. They must also receive a written statement from their lawyer confirming the advice was given.
It has been speculated that the statement of advice prevents the need for it to be later proven that sound advice was received. However, in the recent judgment of Hoult & Hoult, the Family Court confirmed that it will go behind the statement of advice to consider the actual advice given. As both parties must receive sound advice for Financial Agreements to be binding, a party seeking to rely on one should be concerned that the other party’s lawyer also advises them adequately. So, it is in both parties’ interests that each of them consults an experienced Family Lawyer to make a Financial Agreement.
David Gawthorne is a Solicitor at Mullane & Lindsay, and practises extensively in Family, Relationship and Matrimonial Law. If you require any assistance in this area please contact David Gawthorne to arrange a consultation or contact our Newcastle office.