Section 85A to 87 of the Family Law Act 1975 (Cth) deals with maintenance agreements. These are agreements between spouses or former spouses about financial matters, such as maintenance, property interests, and child support.
The sound of pen on paper, the exchange of signatures, and the sealing of an agreement. These are the moments that can define a marriage or its end.
For couples who are separating, maintenance agreements can be a way to reach a fair and agreed-upon outcome about financial matters. These agreements can cover various issues, from child support to spousal maintenance.
Under the Family Law Act 1975, maintenance agreements must meet specific requirements to be valid. Maintenance agreements can be a valuable tool for couples who are separating. They can help ensure that you handle all financial matters fairly and efficiently. Moreover, they can help in avoiding the need for lengthy and costly court proceedings.
Section 85A: Ante-Nuptial and Post-nuptial Settlements
This provision states that the court may make orders as it considers just and equitable concerning the application for the benefit of the following:
- Parties to the marriage
- Children of the marriage
Moreover, in deciding what order to make, the court shall consider the relevant matters enumerated under section 79 of the Act. These matters are:
- The financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the parties’ property to the marriage or either of them;
- Other contributions other than a financial contribution;
- The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;
- The effect of any proposed order upon the earning capacity of either party to the marriage;
- Any other order made under this Act affecting a party to the marriage or a child of the marriage; and
- Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
However, there is an exception. A court cannot make an order under this section regarding matters that are in a financial agreement.
Section 86 and 86A: Registered Maintenance Agreements
Section 86A stipulates that a maintenance agreement that is not a financial agreement has no effect and is not enforceable. Additionally, section 86 lays down the rules for registered maintenance agreements. These are the following:
- A maintenance agreement other than those under section 87 may be registered in any court having jurisdiction.
- A maintenance agreement that parties make after the commencement of this section cannot be registered.
- If the maintenance agreement provides for the maintenance of a child of the relevant marriage, section 66S applies to its modification.
- The rules on modification of spousal maintenance orders under section 83 apply to the variation of a maintenance agreement under this section if it provides for the maintenance of a party to the relevant marriage.
- The court in which parties register a maintenance agreement may set aside the agreement if, and only if, the court believes that one party obtained the concurrence of the other party by:
- fraud or undue influence
- that the parties desire the agreement to be set aside.
- The registered agreement continues to operate despite the death of a party to the agreement, operates in favour of, and is binding on, the party’s legal personal representative.
- The agreement’s maintenance payment provision continues after the death of the party liable to make payments pursuant to that provision and is binding on the legal personal representative of that party.
However, if the person has entitlement to receive those payments is the one who dies, the provision for such payment does not continue to operate after the death of the person who had entitlement to receive those payments.
An exception to the application of this section is those agreements under section 89 or the overseas maintenance agreements.
Section 87: Operation of Maintenance Agreements Entered Into in Substitution for Rights Under Act
What is an approved maintenance agreement? This section defines it as a maintenance agreement that has been approved under this section, and the approval of which has not been revoked.
According to this section, a maintenance agreement may include a provision stating that any rights granted to the parties in relation to the financial matters covered by the agreement shall be superseded by the terms of the agreement.
However, the court must approve such a provision before it becomes enforceable and effective. The court will approve such provision if it is satisfied that the provisions in relation to financial matters are proper. If not, it can refuse the approval of the agreement.
Here are the other rules in relation to the approval of provisions that grant rights on financial matters to the parties of agreement:
- A court with no jurisdiction may not make an order with respect to those financial matters unless there is a revocation of the approval of the agreement.
- A court having jurisdiction under this Act may make an order for the maintenance of the following:
- a party to the relevant marriage
- a child of the relevant marriage
if the court is satisfied that, when the agreement was approved, the party’s circumstances were such that, taking into account the terms and effect of the agreement, the party would have been unsuitable for maintenance.
- If a court approves a maintenance agreement, the agreement is considered registered in that court. Also, it may be registered in another court that has jurisdiction over it.
Can the Court Revoke the Approval of a Maintenance Agreement?
Yes. If such agreement is registered in that court and it believes that the following circumstances exist:
- a party obtained approval by fraud;
- the parties to the agreement desire the revocation of the approval;
- the agreement is void, voidable or unenforceable; or
- in the circumstances that have arisen since the agreement was approved, it is impracticable for the agreement to be carried out or impracticable for a part of the agreement to be carried out.
What Happens upon the Revocation of the Agreement?
The following are the effects of a revocation by the court of a maintenance agreement:
- The agreement ceases, for all purposes, to be in force; and
- The court may make such orders as it considers just and equitable to preserve or adjust the parties’ rights to the agreement and any other interested persons.
Need Help With Drafting Maintenance Agreements?
Maintenance agreements are about more than just legal technicalities. They are also about relationships. They are a way for couples to come to terms with the end of their marriage and start a new chapter in their lives.
If you consider entering into a maintenance agreement, remember that it is more than just a legal document. It is a way to shape your future and build a new foundation for your life.
Our team of family lawyers at JB Solicitors can advise you on relevant matters regarding maintenance agreements under the Family Law Act 1975 in several ways, including:
- Providing legal advice.
- Negotiating on your behalf.
- Drafting a maintenance agreement.
- Approving a maintenance agreement.
We can help you understand your rights and options and reach a fair and reasonable agreement. Enquire now.
