Hi there. Parties in a relationship can sign a ‘financial agreement’ at any time before, during or after a relationship. These agreements are commonly signed before a marriage (sometimes referred to as a ‘prenuptial agreement’), but they can also be signed during a marriage or after the relationship has broken down.

A financial agreement can be used to ensure property or assets are dealt with in a certain way if the relationship breaks down. You can use a financial agreement to ensure you retain ownership of certain property and that it is not divided or shared with your partner or spouse. A financial agreement is unique to each relationship and so there is no formula for what it should contain. However, all financial agreements must comply with the following rules in order to be valid:

• The agreement must be signed by both parties.
  
• Before signing the agreement, both parties must obtain independent legal and financial advice on all aspects of the agreement, including how it affects their rights and whether the terms are just and equitable.
  
• A lawyer must provide a signed statement that legal advice was provided to each party.
  
• The agreement must not have been set aside or terminated by a court.
  
• The agreement must satisfy the written requirements as according to the principles of contract law.

If you are unable to sign a financial agreement (e.g. your wife does not consent), and you proceed with the divorce, you will still need to negotiate a property settlement. Couples are free, and must first attempt, to negotiate the division of property between themselves and try to reach an agreement without involving the courts. If an agreement can be reached, and requires formalisation (i.e. make it legally binding and enforceable), the Family Court can issue consent orders on application. However, if an agreement cannot be reached, the Family Court can also issue financial orders to decide the appropriate division of property.

The court, in reaching a decision, will take into account the initial amount contributed by each spouse to the marriage, as well as the direct and indirect financial contributions of each spouse to the marriage, non-financial contributions, and the future needs of each spouse. The court's decision will be one that the court considers to be just and equitable based on the facts and circumstances of your case.

Suggested way forward

Property settlements during a divorce can be complicated and, if you want to enter a financial agreement, you must obtain professional advice from a lawyer. You should consider speaking to a family lawyer about your legal options and the best way forward. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.