It is increasingly the policy of our governments that parties to
an ended marriage or de facto relationship should be able to
resolve their differences by way of agreement, rather than
It is also the case that newly committed couples are encouraged
to enter into agreements to spare themselves further heartache upon
the foreseeable, yet unwanted, demise of their relationship.
Of the latter variety, there is still some resistance,
particularly from young couples, who see the negotiation and
existence of such an agreement as unromantic and contrary to the
very nature of their new commitment. And before we laugh at their
naivete, it must be remembered that it was not too long ago that
such agreements were deemed void in Australian law as a imposition
upon the sacred institution of marriage. There is some small
hypocrisy in making a vow "for life" and at the same time
negotiating to break that vow.
But, now we have them, and they ought to be used. Our preferred
form of advice to unwilling couples is to think of the agreement a
little like a will. No-one plans to die, certainly not in the short
term future, and yet a will provides for that eventuality.
It is also our experience that agreements made at the start of a
relationship can disfavour women. Even couples willing to enter
into agreements generally negotiate it on the basis that what each
party brings in to the relationship is theirs and they will split
what they acquire during the relationship equally. It seems fair,
but it's usually not. The reason being is that inevitably
during a lengthy relationship, the dynamics of the relationship
change. One party, usually the man, acquires the greater financial
control. One party, usually the woman, sacrifices career and money
for the primary care of children. Inevitably couples do not
consider the "future needs factors" the courts must
consider in property settlements in Queensland – for both
married and de facto couples.
There are mechanisms to counter this – sunset clauses,
contingency clauses and the like. All are acceptable. But even
sophisticated couples will be reticent to find out they might have
to do this unromantic thing again, perhaps at a time when the
relationship is at its zenith – at the birth of a
Further still, our governments have decided that if the
agreements don't "tick all the boxes" the relevant
legislation requires, then the parties may well have not bothered.
If a de facto couple does not have a "recognised separation
agreement" as opposed to an "agreement," or if a
married couple does not have a "binding financial
agreement" as opposed to an "agreement," then the
agreement is almost of no value whatsoever.
What does this all mean?
Unfortunately, and perhaps in spite of the governments'
policies, it is simply impossible for these agreements, if they are
to be just, equitable and binding, unless each party consults upon
a family lawyer. If you, or someone you know, is about to start
living with someone else, get married, or is dealing with the death
throes of a relationship, encourage them to enter into an agreement
and to seek the appropriate advise to make the agreement work.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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