Family Contracts under the Family Law Act (“FLA”)
Most of us have heard about pre-nuptial agreements and marriage agreements but of course most of us never had one – though half the population does get separated and some of those people were successful in avoiding a trial by making a separation agreement.
This article is about how the huge change in family legislation in 2013, from the Family Relations Act (“FRA”) to the FLA, affects the making of a family law agreement – which is a private contract between the two spouses.
A private contract does not of course bind the court in considering whether the private contract is fair – and that includes a consideration of the applicable law – but validly made Contracts do stand and are enforceable unless the court (after someone applies) finds a valid reason to set aside part or all of the contract.
Some of the major changes to family law imposed by the FLA include of course the creation of a new property division which applies to both common law and married spouses – who of course can be same-sex spouses.
Very simply (do seek legal advice for your personal circumstances) the FLA states that the starting point before any successful legal argument, is that both spouses take from the marriage the assets they brought to the marriage except they share equally in value of these assets which increased during the marriage and they share equally the assets acquired after the marriage commenced – except for excluded assets. Some of the legal arguments include of course whether an asset in question is an excluded asset, and the value of the asset before the marriage.
Under the FLA, spouses also share all debts acquired by either spouse during the marriage – unless their private contract provides otherwise.
There are many good reasons to have a properly made agreement as soon as possible – even after you are married – to clarify and confirm facts and assumptions so that expensive disappointments can be avoided.
The author Andrew Liggett has been practicing family law since 1991. Make an appointment today – we can help. Remember, articles like this are not legal advice – they are only general information. Legal advice is only when a lawyer provides an opinion on your personal circumstances.