Postnuptial Agreement (Australia)

An Australian prenuptial agreement is formally known as a Binding Financial Agreement (BFA) made before marriage under section 90B of the Family Law Act 1975 (Cth). It is a legally recognised private contract that allows two people who intend to marry to agree, before the marriage takes place, on how their property, superannuation, and financial resources will be dealt with in the event the marriage breaks down. Under section 90B of the Family Law Act 1975 (Cth), parties to an intended marriage may make a BFA about the following financial matters: how all or any of the property or financial resources of either or both of the parties at the time the agreement is made, or any property or financial resources that either or both of them may acquire after the agreement is made, are to be dealt with; and the maintenance of either party during or after the marriage. This is a very broad scope of coverage — a properly drafted prenuptial BFA can protect pre-existing assets (including a family home, business interests, investment portfolios, and existing superannuation), set rules for how jointly acquired assets will be treated, and limit or define maintenance obligations. The critical requirement that makes a BFA legally binding under Australian law is found in section 90G(1)(b) of the Family Law Act 1975 (Cth). Before the agreement is signed, each party must receive independent legal advice from a separately instructed Australian legal practitioner — a solicitor — about the effect of the agreement on the rights of that party and whether it is to the advantage of that party to make the agreement. Each solicitor must then provide a signed statement confirming that this advice was given, and a copy of that statement must be given to the other party. Without compliant independent legal advice certificates from two separately instructed solicitors, the agreement will not be binding. The requirement for two separate solicitors is not merely a formality. The Family Court of Australia and the Federal Circuit and Family Court of Australia have, on numerous occasions, invalidated prenuptial agreements because the legal advice was deficient — for example, because one solicitor advised both parties, because the certificate was signed after the agreement, or because the advice given was too general or inadequate. The solicitor's certificate is therefore a substantive requirement, not a rubber stamp. Full and frank financial disclosure is another cornerstone of a valid prenuptial BFA. Non-disclosure of a material financial matter is one of the grounds on which the Federal Circuit and Family Court may set aside the agreement under section 90K of the Family Law Act 1975 (Cth). Both parties should disclose all significant assets (including real property, bank accounts, superannuation, business interests, and inheritances expected), liabilities (mortgages, loans, HECS-HELP debts), and income at the time the agreement is made. The schedules of assets and liabilities should be as comprehensive and accurate as possible. A prenuptial BFA can deal with superannuation interests under Part VIIIB of the Family Law Act 1975 (Cth), which allows parties to agree on the splitting of superannuation without a court order. Including superannuation provisions in a BFA requires compliance with additional requirements including identifying the fund and member details, and specifying the base amount or percentage to be split. Superannuation provisions in a BFA are complex and require specialist advice. Spousal maintenance may also be addressed in a prenuptial BFA under section 90B read with section 90E. However, section 90E provides that any maintenance exclusion clause is void to the extent that, at the time it is to be enforced, its operation would result in a party being unable to support themselves without receiving an income-tested pension, allowance, or benefit. This means a blanket exclusion of maintenance will not be enforced in circumstances where one party would otherwise be destitute — for example, following a disability acquired during the marriage. A prenuptial BFA does not deal with parenting arrangements for children. Arrangements for the care and welfare of children remain subject to the court's jurisdiction under Part VII of the Family Law Act 1975 (Cth), and cannot be removed from that jurisdiction by a financial agreement. This template provides a comprehensive foundation for a prenuptial Binding Financial Agreement. However, because of the mandatory requirement for independent legal advice from two separate solicitors and the strict formal requirements under section 90G, this template must be reviewed and finalised with the assistance of two separately instructed Australian solicitors before it can operate as a legally binding document. Using this template as a starting point can significantly reduce the time and cost of solicitor preparation.

Create an Australian Binding Financial Agreement (prenuptial or postnuptial agreement) under Part VIIIA or Part VIIIAB of the Family Law Act 1975 (Cth). Covers property division, superannuation splitting under Part VIIIB, spousal maintenance, and full financial disclosure. Includes solicitor certificate provisions required under s90G.

Create an Australian Separation Agreement covering property settlement under s79 FLA, parenting arrangements under Part VII FLA, child support under the Child Support (Assessment) Act 1989, spousal maintenance, superannuation splitting under Part VIIIB, and debt allocation. Suitable for married couples and de facto couples separating in all Australian states and territories.

A Cohabitation Agreement is a written contract between two people who are living together — or planning to live together — as an unmarried couple. It sets out each party's rights and obligations in relation to property, finances, and other shared arrangements during their relationship, and specifies what happens to property, shared finances, and the shared residence if the relationship ends. In Australia, cohabitation agreements are particularly significant because of the legal rights that can arise once an unmarried couple has lived together as a de facto couple. Under Part VIIIAB of the Family Law Act 1975 (Cth), de facto couples — including same-sex couples — who have cohabited for at least two years (or who have a child together, or where one party has made a substantial contribution) may apply to the Federal Circuit and Family Court of Australia for property division orders and maintenance orders. These are the same court processes available to married couples. This means that without a clear agreement in place, an unmarried Australian couple's property and financial arrangements may be subject to court intervention at the end of the relationship in much the same way as a marriage. Several state and territory Acts add additional layers of protection for cohabiting partners. In New South Wales, the Property (Relationships) Act 1984 (NSW) allows de facto partners and domestic partners to apply for property adjustment orders after two years of cohabitation. In South Australia, the Domestic Partners Property Act 1996 (SA) provides similar rights. In Tasmania, the Relationships Act 2003 (TAS) establishes a formal registration scheme for personal relationships, with property rights arising from registration. Victoria, Queensland, Western Australia, and the ACT provide similar rights under their respective domestic relationships or de facto provisions. A Cohabitation Agreement allows couples to take control of their financial relationship before the law imposes a default framework on them. The agreement can clearly state which property each party owns separately (including property brought into the relationship, and property received as gifts or inheritances during the relationship), how jointly acquired property will be owned, how shared household expenses will be allocated, how a joint bank account will be operated and divided, and what will happen to the shared residence and other assets if the relationship ends. For couples who are beginning to cohabit, a Cohabitation Agreement provides clarity and certainty at the outset of the relationship, avoiding disputes about who owns what if things go wrong. For couples who have cohabited for some time, a Cohabitation Agreement can document their existing arrangements and clarify their intentions going forward. A Cohabitation Agreement is different from a Binding Financial Agreement (BFA) under the Family Law Act 1975 (Cth). A BFA is a more formal document that, if properly executed with each party receiving independent legal advice from a separate Australian solicitor and those solicitors providing the required certificates, can be legally binding and can remove the court's jurisdiction to make property orders. A Cohabitation Agreement that does not meet the requirements of a BFA under section 90UC or 90UD of the Family Law Act will not have the same legally binding effect but still provides a valuable record of the parties' intentions and arrangements, and may be taken into account by a court in any subsequent proceedings. Both parties should make full and frank disclosure of their assets, liabilities, income, and superannuation. Failure to disclose material financial information is a ground on which a court may disregard the terms of any financial agreement. Both parties are strongly encouraged to seek independent legal advice from separate solicitors before signing. This template provides a comprehensive starting point for an Australian Cohabitation Agreement. For the agreement to have maximum legal protection — particularly if the parties wish it to operate as a Binding Financial Agreement under the Family Law Act — it should be reviewed and signed with the assistance of two separately instructed Australian solicitors.

Create a Last Will and Testament for Australia. Appoints an executor, distributes assets, nominates guardians for children, and establishes testamentary trusts. Governed by state Succession Acts. Execution requires two adult witnesses who are not beneficiaries.