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Financial Agreements as an Estate Planning tool

A Financial Agreement is an effective tool for couples in managing their estate planning. Financial Agreements allow couples to pre-determine what they quantify as a fair distribution of their finances and assets, in the event of a relationship breakdown, death of one party, or mental illness.

What is a Financial Agreement?

As mentioned above, a Financial Agreement is an effective tool that helps couples determine ownership of assets and/or liabilities of their marriage or de facto relationship. Financial Agreements can also help ensure your affairs are in order for the remainder of your lifetime and after your death, so as to minimise tax burden, maximise the protection of your assets and ensure that ultimately the right people benefit from your wealth.

Are all Financial Agreements binding?

A Financial Agreement must satisfy certain requirements to be binding;

  • both parties must sign a Financial Agreement;
  • each party must obtain independent legal advice before signing;
  • your solicitor must sign a statement confirming they gave you independent legal advice and provide a copy of this to your partner and their solicitor;
  • it must be clear that the Financial Agreement has not been terminated by any of the parties and has not been set aside by the court.

Why is a Financial Agreement beneficial?

Financial Agreements are generally beneficial for anyone, especially for:

  • Couples who are bringing assets to a new relationship, especially where this is a subsequent marriage/de facto relationship. If one of the parties has children from a previous relationship, a term can be included in the Financial Agreement stating that assets are to be divided upon one of the parties’ death as if they were separate. This should also be reflected in your Will.
  • Children who are likely to receive a significant inheritance upon their parents’ passing. A Financial Agreement will help parents preserve this inheritance for their child, in the event of their child’s relationship with their spouse or de facto partner ending.
  • ‘Generational wealth transfer’ – this occurs where parents are preparing to retire and hand over the family business to their child and their child’s partner. The Financial Agreement in this case is designed to protect the family business that has been in the family for many years.

A Financial Agreement is generally more cost-effective than attempting to negotiate a property settlement and possible court proceedings post-separation. A Financial Agreement will continue to operate despite the death of a party and will operate in favour of, and be binding on, the legal representative of that party.

How does a Financial Agreement affect your estate?

A Financial Agreement predetermines the financial outcome of a relationship when it breaks down, and consequently removes the discretion of the Court to divide a couple’s assets. This means that parties can enter into a relationship secure in the knowledge that if they separate, each party will preserve and protect what they brought into the relationship. Financial Agreements should also be mirrored in the parties’ respective Wills.

A Financial Agreement binds the estates of married and de facto couples, meaning that if you lose mental capacity or die, your estate is still bound to honour the terms of your Financial Agreement for division of your finances and assets.

Conclusion

A Financial Agreement can serve as a safety net and is an effective tool for estate planning. If you do not end up needing to use it, you have lost nothing, however it will give you peace of mind about you and your loved ones’ future.

If you or someone you know wants more information or needs help or advice on Financial Agreements, please contact Ian Tait on 08 9422 8111 or email buslaw@taitlegal.com.au.