Separation Agreement - Template, Sample Form Pro · AU-law

IMPORTANT NOTICE — INSTRUCTIONS FOR USE

Obtain independent legal advice before signing this Financial Agreement. This template is not a substitute for legal advice and is provided for general information only.

For a financial agreement made under Part VIIIA of the Family Law Act 1975 (Cth) to be binding, each party must receive independent legal advice. Under section 90G of the Act, a financial agreement is binding on the parties only if:

(a) the agreement is signed by all parties; and

(b) before signing, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time the advice was provided, of making the agreement; and

(c) either before or after signing, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided; and

(d) a copy of the statement referred to in paragraph (c) provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and

(e) the agreement has not been terminated and has not been set aside by a court.

This instruction page is a guide only and may be removed before signing.

FINANCIAL AGREEMENT

Made under sections 90C and 90DA of the Family Law Act 1975 (Cth)

This Financial Agreement (\\"Agreement\\") is made on ________ between the following parties (\\"Parties\\"):

________ of ________ (\\"First Party\\")

And:

________ of ________ (\\"Second Party\\")

§ 1 RECITALS

(a) This Agreement is made under Part VIIIA of the Family Law Act 1975 (Cth) (the \\"Act\\").

(b) ________ was born on ________ at ________.

(c) ________ was born on ________ at ________.

(d) The Parties were married on ________ at ________.

(e) The relationship between the Parties has irretrievably broken down, and the Parties acknowledge that there is no reasonable likelihood of cohabitation being resumed.

(f) The Parties have separated permanently as of ________ (the \\"Separation Date\\").

(g) The Parties have made full, frank, honest and accurate disclosure to each other of their respective financial circumstances, including their assets, liabilities, income, financial resources and expenses, as set out in this Agreement.

(h) The Parties intend that this Agreement constitute a final settlement of their respective rights arising out of their relationship in relation to the matters set out in this Agreement.

(i) The Parties acknowledge and agree that, pursuant to Part VIIIA of the Act, by entering into this Agreement the matters of spousal maintenance and the property and financial resources of the Parties are dealt with in accordance with the terms of this Agreement.

(j) This Agreement will be binding on the heirs, executors, administrators and assigns of each Party respectively.

(k) The Parties acknowledge that each has been provided with independent legal advice in accordance with section 90G of the Act before signing this Agreement.

In consideration of the mutual promises set out in this Agreement, the Parties agree as follows:

§ 2 GENERAL ACKNOWLEDGEMENTS

(a) Each Party confirms that they are satisfied with the completeness of the disclosure made by the other Party regarding that Party's financial circumstances, including assets, liabilities, income, financial resources and expenses.

(b) Each Party confirms that they fully understand their rights and obligations in relation to the other Party and the other Party's financial circumstances, and that they require no further information from the other Party regarding the matters dealt with in this Agreement.

(c) Each Party confirms that they are entering into this Agreement freely and voluntarily.

(d) Each Party confirms that they have not been subjected to duress, undue influence, coercion or unconscionable conduct by the other Party or any other person in entering into this Agreement.

(e) Each Party has received independent legal advice from a legal practitioner about the effect of this Agreement on their rights and about the advantages and disadvantages of making this Agreement, as required by section 90G of the Act.

(f) Each Party confirms that, as at the date of this Agreement, they are not a party to any other binding financial agreement, whether under section 90B, 90C or 90D of the Act or otherwise, that is inconsistent with this Agreement.

(g) The Parties wish to finalise all financial matters between them on the terms of this Agreement, and enter into this Agreement under sections 90C and 90DA of the Act.

§ 3 CONDUCT FOLLOWING SEPARATION

(a) Subject to section 90G of the Act, this Agreement takes effect once it is signed by both Parties.

(b) Nothing in this Agreement prevents a Party from defending any action commenced against them by the other Party.

(c) The Parties have lived separately and apart, both physically and emotionally, since ________. Each Party agrees not to enter the other's residence or place of work without prior invitation or approval.

(d) Each Party will respect the privacy and independence of the other Party and refrain from interfering with, disturbing or harassing the other Party or the friends, family or associates of the other Party.

(e) Each Party agrees not to disparage, denigrate or harm the reputation of the other Party or the friends, family or associates of the other Party.

§ 4 CHILDREN

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(a) The Parties have the following child or children together:

________, born ________ (the \\"Child\\").

(b) The Parties confirm that ________ is a parent of the Child.

(c) The Parties confirm that ________ is a parent of the Child.

(d) The Parties intend to agree a parenting plan in relation to the Child.

(e) The Parties intend to agree a child support arrangement in relation to the Child.

(f) The Parties agree to respect the rights of the Child and to encourage the Child to love and respect both Parties, recognising that the best interests of the Child are the paramount consideration.

(g) Neither Party will attempt to alienate the Child from the other Party, whether by words, actions, omissions, insinuation or otherwise.

GENERAL VALUES AND PARENTING STYLE

(h) The Parties agree to work together in the best interests of the Child and to uphold the following values and parenting approach:

________

LIVING ARRANGEMENTS

(i) The Parties agree to the following general living arrangements for the Child (\\"Living Arrangements\\"):

During the school term

________

During school holidays

________

Long weekends and public holidays

________

The Child's birthdays

________

Parents' birthdays

________

Mother's Day

________

Father's Day

________

Christmas and other religious or cultural occasions

________

Other events or special occasions

________

(j) For any handover occurring outside school hours, the Party handing over the Child will deliver the Child to the other Party's residence.

(k) On school days or days of other events (such as excursions or sports days), if the Child wakes at one Party's residence, that Party will be responsible for organising the Child's lunch for the day.

EDUCATION

(l) The Parties agree to the following arrangements in relation to the Child's education:

________

POCKET MONEY

(m) The Parties agree to the following arrangements in relation to the Child's pocket money:

________

CHILD SUPPORT

(n) The Parties agree to the following arrangements in relation to the Child's living costs:

________

DECISION MAKING

(o) The Parties agree that both Parties must be involved in decisions concerning the following matters:

________

(p) If a disagreement arises concerning the Child, the Parties will attempt to resolve it between themselves in good faith, based on the best interests of the Child.

(q) If the Parties cannot agree on any matter relating to the Child, they will attend family dispute resolution (mediation) with an accredited family dispute resolution practitioner before commencing any court proceedings, save where an exemption under section 60I of the Act applies.

§ 5 DIVISION OF PROPERTY

FINANCIAL CIRCUMSTANCES

(a) For the purposes of this Agreement, the \\"Financial Circumstances\\" of a Party means the total direct and indirect financial circumstances of that Party, taking into account all income, assets, financial resources and liabilities, including:

(I) all earnings of that Party from income, salary, wages, dividends, investments or otherwise;

(II) all earnings, property and financial resources that Party receives directly, indirectly or through another person or beneficiary;

(III) all financial resources of that Party, including superannuation interests, life insurance policies, any likely inheritance and any rights or interests under a discretionary trust;

(IV) any property disposed of by that Party in the 12 months immediately before or after the Separation Date, whether by sale, transfer, assignment, gift or otherwise;

(V) all debts of that Party, including home loans, credit card debts, personal loans, business loans, tax liabilities and HECS-HELP debts; and

(VI) the fair market value of all assets and liabilities forming part of that Party's Financial Circumstances.

(b) ________ warrants and represents that Schedule 1 contains a complete, honest and accurate representation of their Financial Circumstances.

(c) ________ warrants and represents that Schedule 2 contains a complete, honest and accurate representation of their Financial Circumstances.

(d) The Parties warrant and represent that Schedule 3 contains a complete, honest and accurate representation of the assets and liabilities held jointly between the Parties.

FORMER MATRIMONIAL HOME

(e) The former matrimonial home owned by the Parties is located at the following address (the \\"Matrimonial Home\\"):

________ (being the land described in Certificate of Title / Folio Identifier ________)

(f) ________ will transfer their interest in the Matrimonial Home to ________ upon payment by ________ of the sum of $________ (________ dollars), such transfer and payment to be completed on or before ________.

(g) ________ will transfer all of their interest in the Matrimonial Home free of all encumbrances, save for any existing mortgage to be assumed by the receiving Party.

(h) ________ will indemnify and keep indemnified ________ against all obligations, liabilities and expenses, including reasonable legal costs, arising out of or in connection with the Matrimonial Home from the date of transfer.

DISTRIBUTION OF OTHER ASSETS

(i) The Parties agree to the following distribution of assets:

________

(j) Subject to the terms of this Agreement, each Party makes no further claim to any asset in the possession of the other.

SPOUSAL MAINTENANCE

(k) The Parties agree that ________ will pay spousal maintenance to ________ as set out in this clause (\\"Spousal Maintenance\\").

(l) The Spousal Maintenance will be paid by way of a lump sum of $________ (________ dollars), payable on or before ________.

(m) This Agreement makes provision for the maintenance of each spouse party in accordance with sections 90E and 90F of the Act. Each Party acknowledges that, except as provided in this Agreement, the right of each Party to apply for an order for spousal maintenance under the Act is excluded.

FURTHER DEBTS

(n) Unless otherwise expressly stated in this Agreement, any encumbrance or indebtedness secured against, or attributable to, any item of property received by a Party under this Agreement will be the sole responsibility of the Party receiving that property.

(o) Any debt incurred by a Party after the Separation Date will be the sole responsibility of the Party incurring that debt, who will indemnify and keep indemnified the other Party against all costs, expenses and losses related to that debt.

(p) Neither Party will incur any further debt or liability on the credit of the other Party.

(q) From the date of this Agreement, neither Party will borrow money or incur debts in the name of, or for which liability would attach to, the other Party.

(r) From the date of this Agreement, each Party will be responsible for any debts, loans or liabilities in that Party's own name.

§ 6 SUPERANNUATION

(a) The Parties acknowledge and agree that any superannuation interest of either Party forms part of the Financial Circumstances of that Party as disclosed in this Agreement.

(b) Subject to clause §6(d), the Parties agree that each Party will retain their own respective superannuation interests, and neither Party will make any claim against the superannuation interests of the other Party.

(c) Each Party acknowledges that they have been advised of their right to seek a splitting order or to make a superannuation agreement in relation to the superannuation interests of the other Party, and each Party has chosen not to pursue such an order or agreement.

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§ 7 GENERAL RELEASE

Each Party releases all claims, whether arising under the laws of ________ or any other jurisdiction, whether arising by statute or at common law, including actions founded on constructive trust, resulting trust or unjust enrichment, which such Party may now or hereafter have, acquire or be entitled to against the property or estate of the other Party, however and whenever acquired. If any such action is brought, the provisions of this Agreement may be pleaded as a full and complete defence.

§ 8 GENERAL PROVISIONS

(a) This Agreement contains the entire agreement between the Parties in relation to the matters dealt with in it and supersedes any earlier written or oral agreement between the Parties.

(b) Each Party will promptly sign and deliver all documents reasonably necessary to give effect to the terms of this Agreement.

(c) If any provision of this Agreement is held by a court to be invalid, unenforceable or void, that holding will not invalidate the remainder of this Agreement, and the relevant provision will be deemed amended, reduced in scope or severed only to the extent necessary for validity and enforcement.

(d) This Agreement may be amended only in writing, after each Party has obtained independent legal advice on the proposed changes and in a manner that complies with section 90G of the Act.

(e) In the event of a dispute regarding this Agreement, the Parties will attempt to resolve the matter through negotiation or mediation before commencing court proceedings.

(f) The Parties acknowledge that their circumstances may change after execution of this Agreement, but it remains their intention to be bound by its terms at all times, subject to the operation of sections 90K and 90KA of the Act.

(g) The Parties will provide and execute such further documentation as may be reasonably required to give full force and effect to each term of this Agreement.

(h) The headings in this Agreement are for convenience only and do not affect its interpretation.

(i) This Agreement is binding upon and enures to the benefit of the Parties and their respective heirs, executors, administrators and assigns.

(j) If the Parties reconcile, the terms of this Agreement will remain in effect unless revoked or terminated in writing in accordance with section 90J of the Act.

(k) This Agreement may be terminated only by a termination agreement made in accordance with section 90J of the Act, or by an express provision in a subsequent financial agreement under the Act.

(l) The law of ________ governs the interpretation of this Agreement and the status, ownership and division of property between the Parties, wherever either or both of them may from time to time reside.

(m) This Agreement may be executed in counterparts, each of which constitutes an original and all of which together constitute one and the same instrument.

EXECUTED as an agreement.

SIGNED by ________:


_________________________________
Signature of ________

____________________
DATE

In the presence of:


_________________________________
Signature of Witness

_________________________________
Name of Witness (printed)

_________________________________
Address of Witness

SIGNED by ________:


_________________________________
Signature of ________

______________
DATE

In the presence of:


_________________________________
Signature of Witness

_________________________________
Name of Witness (printed)

_________________________________
Address of Witness

SCHEDULE 1

Financial Assets, Income and Liabilities of ________

The following is a complete, honest and accurate list of the Financial Circumstances of ________, including all assets, income, financial resources and liabilities:

________

SCHEDULE 2

Financial Assets, Income and Liabilities of ________

The following is a complete, honest and accurate list of the Financial Circumstances of ________, including all assets, income, financial resources and liabilities:

________

SCHEDULE 3

Jointly Held Financial Assets, Income and Liabilities

The following is a complete, honest and accurate list of the financial assets, income and liabilities held jointly by the Parties:

________

SEPARATION DECLARATION

(Made pursuant to section 90DA of the Family Law Act 1975 (Cth))

I, ________, acknowledge, agree and declare that the following is true and correct:

• I was married to ________ from ________ until ________;
• ________ and I separated on ________ and are living separately and apart at the time of signing this declaration; and
• in my opinion, the relationship has irretrievably broken down and there is no reasonable likelihood of cohabitation being resumed.

DATED this ________ day of ________

SIGNED _________________________________

________

SEPARATION DECLARATION

(Made pursuant to section 90DA of the Family Law Act 1975 (Cth))

I, ________, acknowledge, agree and declare that the following is true and correct:

• I was married to ________ from ________ until ________;
• ________ and I separated on ________ and are living separately and apart at the time of signing this declaration; and
• in my opinion, the relationship has irretrievably broken down and there is no reasonable likelihood of cohabitation being resumed.

DATED this ________ day of ________

SIGNED _________________________________

________

STATEMENT OF INDEPENDENT LEGAL ADVICE

(Made pursuant to section 90G(1)(b) and (c) of the Family Law Act 1975 (Cth))

I, ________ (solicitor name) of ________ (firm) of ________ (address), an Australian legal practitioner holding practising certificate number ________, hereby certify:

I provided independent legal advice to ________, a Party to the attached Financial Agreement (\\"Agreement\\"), separately and apart from ________. I acted solely for ________. Before that Party signed the Agreement, I provided advice about the effect of the Agreement on the rights of that Party and about the advantages and disadvantages, at the time the advice was provided, to that Party of making the Agreement, as required by section 90G(1)(b) of the Act. That Party signed the Agreement freely and voluntarily, without any fear, threat, coercion, duress, undue influence or unconscionable conduct.

CERTIFIED at ________ (town/city, state/territory)

DATED this ________ day of ________

SIGNED _________________________________

PRINT NAME _________________________________

STATEMENT OF INDEPENDENT LEGAL ADVICE

(Made pursuant to section 90G(1)(b) and (c) of the Family Law Act 1975 (Cth))

I, ________ (solicitor name) of ________ (firm) of ________ (address), an Australian legal practitioner holding practising certificate number ________, hereby certify:

I provided independent legal advice to ________, a Party to the attached Financial Agreement (\\"Agreement\\"), separately and apart from ________. I acted solely for ________. Before that Party signed the Agreement, I provided advice about the effect of the Agreement on the rights of that Party and about the advantages and disadvantages, at the time the advice was provided, to that Party of making the Agreement, as required by section 90G(1)(b) of the Act. That Party signed the Agreement freely and voluntarily, without any fear, threat, coercion, duress, undue influence or unconscionable conduct.

CERTIFIED at ________ (town/city, state/territory)

DATED this ________ day of ________

SIGNED _________________________________

PRINT NAME _________________________________