June 7, 2020
Doyle's Guide

Victorian Family Law – Market Developments & Updates, 2016

There have been a number of high profile family law property cases in Melbourne recently in which the subject of ‘Pre-Nuptial Agreements’, properly known as Financial Agreements, have been central.

Previously and still colloquially known as “Pre-Nuptial Agreements”, a Financial Agreement is essentially a way to opt out of the Family Law Act.  It is a useful tool which allows parties to decide how property and maintenance will be dealt with on the breakdown of a relationship, irrespective of the relevant provisions of the Family Law Act that the Family Court would usually apply to those issues.  Pre-Nuptial Financial Agreements are one type of Financial Agreement. In fact, they can be entered into before, during or after a relationship.

A well drafted Financial Agreement can provide an enormous amount of peace of mind, not to mention cost saving, to separating parties as there is certainty as to how assets and maintenance will be dealt with following separation.  However drafting is not the only issue.  A well drafted Agreement is of course very important, but parties also need to be well advised.  This is where the expertise and experience of your family law solicitor is crucial.  Most (but not all) cases where the Courts have set aside these Agreements arise because of some errors either in the drafting of the Agreement, omission in its content, or problems relating to its execution (often related to the requirement that each party has had independent legal advice).

The approach at Coote Family Lawyers is to involve clients in the process, while still maintaining an absolute focus on detail to ensure that the Agreement will be enforceable if it is ever tested in Court.

There is currently a Bill before the Australian Senate which seeks to amend the sections of the Family Law Act in relation to receiving independent advice and proving that it has in fact been received.  One step ahead of the legislation, it is already the practice of Coote Family Lawyers to require that an acknowledgement be exchanged between the parties as evidence that the legal advice was not just given, but also received.  The Government has made it clear that the Bill is aimed at ensuring “prospective, current or former parties to a marriage or de facto relationship [can] take responsibility for resolving their financial and maintenance matters without involving a court.”  Given the costs associated with litigating faulty Financial Agreements (and the costs that follow if an Agreement is set aside by the Court), providing certainty to parties and solicitors is both welcome and necessary.

Financial Agreements are not always necessary or appropriate to your needs. Financial Agreements are one of only two enforceable ways in which parties can deal with the division of property and maintenance following the breakdown of a relationship, the other of course being Court Order.

Recent cases from the Full Court of the Family Court have highlighted a potentially more detailed approach to the question of analyzing respective contributions of parties to a marriage or relationship. Once again, a focused approach from the outset of a matter will ensure that the appropriate issues of contribution are highlighted and the evidence garnered to support such assertions. Detailed gathering of facts, supporting witnesses and, where appropriate, the necessary expert evidence, maximizes the prospects of turning instructions about differential contributions into outcomes.   We try not to lose sight of the end result whilst properly considering the facts.   Our approach is to involve our clients so that they retain the control of both the legal process and also their future.

We act for a very broad range of clients with an extremely wide range of issues, and Financial Agreements are just one part of the service we offer.   We can assist you with a range of issues related to family law (including de-facto and same sex relationships), whether it be some initial advice if you are considering separation, a child support issue or a parenting dispute.  Primarily you need a lawyer who can advise you promptly and practically, with regard to fees spent versus the final result achieved, but always with an eye to the necessary detail.  At Coote Family Lawyers you are assured a high level of communication in order to ascertain what the best approach is for you and your family, and in order to properly inform you so that you can make all the decisions necessary in your matter.  After all, it is your family’s future which should be of paramount importance.

The above article has been prepared for Doyle’s Guide by the team at Coote Family Lawyers.coote

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