After 16 years of marriage and the birth of three sons Mr and Mrs Harris were enjoying a happy marriage. But they were concerned about the impact future financial hardship could have on their boys. They entered into a Financial Agreement enabling them to protect themselves and their children by making financial provisions in all the circumstances they could envisage. Mr and Mrs Harris continue to work but feel they have their bases covered should any unwelcome situations develop.

Binding Financial Agreements can be made between parties to a marriage or between parties to a de facto (including same sex) relationship. These agreements can be made before, during or after the marriage or de facto relationship. A binding financial agreement entered into before marriage is sometimes referred to as a pre-nuptial agreement.

Binding Financial Agreements entered into before a marriage or de facto relationship define the ownership and value of property and financial resources owned by the parties (separately and/or jointly) at that time and specify how they are to be divided if the relationship breaks down. The agreement might also provide for the maintenance of either of the parties. The agreement gives the couple the peace of mind of knowing that if the relationship ends they have some certainty about the division of their property.

To be valid and binding, a Binding Financial Agreement requires careful consideration by the parties of what they require and what the future might hold. It is also important that the agreement is drafted carefully and accurately to remove any ambiguity and prevent future challenges.

For people who have already been through a relationship breakdown or are entering a de facto relationship with substantial assets, this peace of mind can be particularly important.

Case: Cameron And Michelle Plan For The Future

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Cameron And Michelle Plan For The Future

Cameron and Michelle planned a wedding and were looking forward to the big day. Everything was organized except for the financial arrangements for their married life. Cameron had a thriving business and Michelle was the composite professional. Both had saved hard and had decent equity in property and share investment portfolios. They had both reached a level of financial independence long before they met. Although looking forward to married life, they also wanted to protect their property and investments, neither wanted unpleasant surprises and uncertainty if their marriage didn’t work out. Cameron and Michelle carefully considered the different possibilities their future might hold and how they would manage financially. They entered a binding Financial Agreement which provided for their own entitlements and those of any children, ensuring financial hardship and unnecessary legal costs were avoided in their future life.

Cameron and Michelle planned a wedding and were looking forward to the big day. Everything was organized except for the financial arrangements for their married life. Cameron had a thriving business and Michelle was the composite professional. Both had saved hard and had decent equity in property and share investment portfolios. They had both reached a level of financial independence long before they met. Although looking forward to married life, they also wanted to protect their property and investments, neither wanted unpleasant surprises and uncertainty if their marriage didn’t work out. Cameron and Michelle carefully considered the different possibilities their future might hold and how they would manage financially. They entered a binding Financial Agreement which provided for their own entitlements and those of any children, ensuring financial hardship and unnecessary legal costs were avoided in their future life.

If there is a concern about a child potentially being wrongfully removed from Australia, it is necessary to file an Application and then present the Order authorizing a PACE Alert to the Federal Police. This Alert prevents the departure of the child from Australia with the child’s details be placed on an Airport Watch list.

If a child has been wrongfully removed from Australia, the return process depends on which country the child has been taken to.

If the child has been taken to a country that is a signatory to the Hague Convention, an Application may be made for the child’s return usually through the State or Commonwealth Attorney General Central Authority.

If the child has been taken to a country that not a party to the Hague Convention it may still be possible to have the child returned to Australia, but in most cases a lawyer in the overseas country will be required to start proceedings in that country to have the child returned.

It might be prudent to prevent the issue of an Australian or foreign passport for the child. This can be achieved by contacting the Australian Passport Office or the relevant embassy.

The lawyers at Mathews Family Law & Mediation Specialists Melbourne have significant experience and expertise with regard to issues that affect children. If you are concerned about your children being removed within Australia or overseas, then you should contact us urgently. If you are considering moving your child interstate or overseas then contact us for advice about the possible consequences of such a move.

Mathews Family Law is an Australian law firm. Please contact us on +61 3 9804 7991 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.

[Case: Emily avoids being returned to the USA]

If a child has been wrongfully removed within Australia, application can be made to the Court for a Recovery Order. A Recovery Order authorizes officers of the Court, the Federal Police and the State Police to stop and search vehicles, vessels, aircraft, premises or places where the child may be found. When found, the child is returned to the party who has made the Application.

Case: Claudia returned after her mother abducted her to WA

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Claudia returned after her mother abducted her to WA

Peter and Claudia were a fantastic father and daughter team, they spent many hours discussing their favorite sports. Peter was deeply involved with Claudia’s home schooling. He lived with Claudia and her mother. One night, though, Peter returned home from shopping to discover both Claudia and her mother were gone. An urgent application was made to the Family Court of Australia and the Australian Federal Police found Claudia safe in West Australia and a few days later she was home safe and sound with her dad. Peter and Claudia continue to spend many happy hours together today.

Situations where the agreement may not be binding include:

• the general laws of contract must be followed,
• both parties must make full disclosure of their financial situation,
• parties must not be dishonest or fraudulent in disclosing their financial position,
• if the procedures set out in the Family Law Act have not been properly followed, or
• a significant change in the care, welfare and development of a child of the relationship has arisen since the agreement was entered into, which would result in a party suffering hardship if they could not overturn the agreement.

If you want a binding financial agreement, then you will need to discuss the following with your partner beforehand:

• who will work during the relationship?

• is there a plan to have children?

• are there children from previous relationships?

• what happens if either partner can no longer work?

• what happens if a child has a disability or illness requiring significant care?

• what are your retirement goals?

• will assets be joint or separate?

There is still some uncertainty about how the law providing for financial agreements will be applied. The situations where a financial agreement will be set aside are not yet clear. Where inadequate consideration is applied by the parties then unanticipated circumstances may arise which make the agreement unfair.

A financial agreement provides the couple with the knowledge that if they separate, the division of their property has already been arranged. The best advantage is obtained from a well drafted financial agreement which has been prepared after proper consideration on the part of the parties to the agreement

Common reasons for considering a prenuptial agreement include:

• ownership of a successful business;
• having a high level of wealth;
• having children from a previous marriage;
•  having elderly parents;
• anticipating a sizeable inheritance;
• having sizeable debt;
• pursuing a lucrative career;
• ownership of stock, a home or retirement fund; or
• avoiding a costly divorce.

Financial Agreements can regulate financial arrangements between married couples, de facto couples and same sex couples.