#8552 - Financial Agreements - Family Law

fl 6 financial agreements 1

Agreements before 27/12/2000 – look at s 87 FLA 1

Revoking agreement 2

Agreements on or after 27/12/2000 – look at s 90B for agreements before marriage 3

Exam tip:

• Note that Part VIII does not apply to certain matters covered by binding financial agreements: s 71A FLA.

• What date was the agreement made?

  • if financial agreement – if the provision was made before 27/12/2000 – then you look at s 87

  • if it was mae on or after 27/12/2000 – then look at s 90B, (cf s 90 C agreements during divorce, s 90D agreemtents after divorcE) and s 90DA - look at pages 2 or following of the handout. On that day a new PT VIII

• The parties may enter into a maintenance agreement defined in s 4 FLA

• maintenance agreement means an agreement in writing made, whether before or after the commencement of this Act and whether within or outside Australia, between the parties to a marriage, being an agreement that makes provision with respect to financial matters, whether or not there are other parties to the agreement and whether or not it also makes provision with respect to other matters, and includes such an agreement that varies an earlier maintenance agreement.

financial matters means:

(a) in relation to the parties to a marriage—matters with respect to:

(i) the maintenance of one of the parties; or

(ii) the property of those parties or of either of them; or

• (iii) the maintenance of children of the marriage; or

• Agreement had no effect and not enforcebable unless approved by court: s 87(2)

• Court won’t approve agreement unless proper to do so: s 87(3).

• Although s 87 doesn’t say so the practice was that this agreement could only take place after separation. Court took the view that agreement before or during marriage that it wouldn’t be proper to look at the agreement. Only after separation that the agreement would be considered by court under s 87

(4) Where a maintenance agreement that makes provision as mentioned in subsection(1) is approved by the court:

(a) any order having effect under this Part or any order made under PartVIII of the repealed Act and continued in effect by virtue of paragraph 3(2)(c) ceases to have effect in so far as it relates to the financial matters dealt with in the agreement and, whether or not the approval of the agreement is revoked, has no further effect; and

(b) subject to subsections(4A) to (4C) (inclusive), no court having jurisdiction under this Act may make an order (other than an order under this section or an order in connection with the enforcement of the agreement) with respect to those financial matters unless the approval of the agreement is revoked.

(4A) The approval, after the commencement of this subsection, of a maintenance agreement under this section does not exclude or limit the power of a court having jurisdiction under this Act to make an order in relation to the maintenance of a party to the relevant marriage if the court is satisfied that, at the time the agreement was approved, the circumstances of the party were such that, taking into account the terms and effect of the agreement, the party would have been unable to support himself or herself without an income tested pension, allowance or benefit.

(4B) Where subsection(4A) applies in relation to an approved maintenance agreement, section83 applies in relation to the variation of the agreement, in so far as the agreement makes provision for the maintenance of a party to the marriage, as if the agreement were an order made by consent under this Act by a court in which the agreement is registered or deemed to be registered.

(8) A court may, by order, revoke the approval of a maintenance agreement under this section if, and only if, the agreement is registered or deemed to be registered in that court and the court is satisfied that:

(a) the approval was obtained by fraud;

(b) the parties to the agreement desire the revocation of the approval;

(c) the agreement is void, voidable or unenforceable; or

(d) in the circumstances that have arisen since the agreement was approved it is impracticable for the agreement to be carried out or impracticable for a part of the agreement to be carried out.

Can revoke if:

• fraud: s...