Separation Agreement - Template, Sample Form

INSTRUCTIONS FOR USE:

Seek legal advice before signing this Financial Agreement.

This Financial Agreement template is not a substitute for legal advice. It is provided for information purposes only.

In order for this Financial Agreement to be legally binding, both parties need to have independent legal advice.

Under section 90G of the Family Law Act 1975 (Commonwealth) a Financial Agreement is not binding on the parties to it unless:

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

(b) before signing the agreement, 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 that the advice was provided, to that party of making the agreement; and

(c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and

(d) a copy of the statement referred to in paragraph (c) that was 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 page is provided as a guide and can be removed before signing.

FINANCIAL AGREEMENT

This Financial Agreement ("Agreement") is entered into on.................................... between the following parties ("Parties"):

________

And:

________

(1) RECITALS

(a) This Agreement is made under the Family Law Act 1975 (Commonwealth) (the "Act").

(b) ________ was born on ________ at ________.

(c) ________ was born on ________ at ________.

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

(e) There has been a breakdown in the relationship between the Parties. The Parties agree that the relationship has irretrievably broken down.

(f) The Parties have agreed to separate permanently as of ________ ("Separation Date").

(g) The Parties have made complete, honest and accurate disclosure to each other regarding their respective financial positions including their assets, liabilities, income and expenses, as set out in this Agreement.

(h) The Parties intend for this Agreement to constitute a final settlement of the Parties' rights in relation to their relationship and the matters set out within this Agreement. The Parties intend that this Agreement may be incorporated into a final Court Order, unless any specific matters are amended or addressed in a subsequent agreement.

(i) The Parties acknowledge and agree that pursuant to Part VIIIA of the Act, by entering this Agreement, the matters of spousal maintenance, the finances of the Parties, and the property of the Parties, will be settled 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.

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

(2) GENERAL

(a) The Parties each respectively confirm that they are satisfied with the completeness of the disclosures made by the other Party regarding that Party's financial position including their assets, liabilities, income and expenses.

Lorem ipsum dolor sit amet consectetur adipiscing elit sed do eiusmod tempor incididunt ut labore et dolore magna aliqua ut enim ad minim veniam quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat duis aute irure dolor in reprehenderit voluptate velit esse cillum dolore eu fugiat nulla pariatur lorem ipsum dolor sit amet consectetur adipiscing elit sed do eiusmod.

(c) The Parties each respectively confirm that they are entering this Agreement voluntarily.

(d) The Parties each respectively confirm that they have not been forced to sign this Agreement by any other person (including but not limited to the other Party).

(e) The Parties have each had independent legal advice about their rights and obligations in relation to this Agreement and their relationship.

(f) The Parties each respectively confirm that as at the date of this Agreement they are not the parties to any other binding agreement, whether under section 90B, 90C or 90D of the Act or otherwise.

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

(3) DISSOLUTION

(a) Subject to section 90G of the Act, this Agreement will be effective once it is signed by the Parties.

(b) Nothing in this Agreement will prevent a Party from defending any action which has been commenced against it by the other Party.

(c) The Parties have lived separate and apart, both physically and emotionally, since ________. The Parties have agreed that they will not enter the other's living or work space without prior invitation or approval.

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

(e) The Parties each hereby respectively agree not to disparage, denigrate or harm the reputation of the other Party or any friends, family or associates of the other Party.

(4) CHILDREN

(a) The Parties have one child together, the details of which are as follows:

________, male, born ________.

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

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

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

(e) The Parties intend to agree a child support agreement 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.

(g) The Parties will not attempt to alienate the Child from the other Party, whether by words, actions, omissions, insinuation or any other way.

GENERAL VALUES AND PARENTING STYLE

(h) The Parents agree to work together in the best interests of the Child and confirm that they agree to uphold the following values and parenting style:

________

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

________

Parent's birthdays

________

Mother's Day

________

Father's Day

________

Christmas or other religious/cultural occasions

________

Other events or special occasions

________

(j) For any handover that occurs outside of school hours, the Party that is handing over the Child will deliver the Child to the other Party's house.

(k) On any school days, or days of any other events (such as excursions or sports days), if the Child wakes up at one Party's house, then 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 in relation to the following matters:

________

(p) The Parties acknowledge and agree that if they disagree on any matters in future in relation to the Child, they should attempt to resolve the matters by discussing them between themselves in good faith, based on what is in the best interests of the Child.

(q) The Parties agree that if they cannot agree on any matter relating to the Child, they will attend mediation.

(5) MATRIMONIAL PROPERTY DIVISION

FINANCIAL CIRCUMSTANCES

(a) For the purposes of this Agreement, the "Financial Circumstances" of a Party refers to the total direct and indirect financial circumstances of that Party, taking into account all income, assets and liabilities. This includes:

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

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

(III) All financial resources of that Party including but not limited to superannuation, life insurance policies, any likely inheritance, and any rights under a discretionary trust;

(IV) Any property that Party has disposed of 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 but not limited to home loans, credit card debts, personal loans, business loans, tax liabilities, and HECS-HELP debts;

(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 ________'s Financial Circumstances.

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

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

MARITAL HOME

(e) The marital home owned by the Parties is located at the following address ("Marital Home"):

________

(f) ________ will transfer their interest in the Marital Home to ________ upon payment by ________ of the sum of $________ (________ dollars).

(g) ________ will transfer all of their interest in the Marital Home, free of all encumbrances.

(h) ________ will indemnify and hold ________ harmless from and against all obligations and expenses, including reasonable legal fees, arising out of or related to the Marital Home.

DISTRIBUTION OF ASSETS

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

________

(j) The Parties make no further claims to any assets 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) ________ will pay Spousal Maintenance by way of a lump sum amount of $________ (________), payable in accordance with the terms of this Agreement.

FURTHER DEBTS

(m) The Parties agree that, unless otherwise explicitly stated in this Agreement, any encumbrances or indebtedness secured against, or attributable to, any item of property that either Party is receiving under this Agreement will be the sole responsibility of the Party receiving that property.

(n) Any debt incurred by a Party after the Separation Date will be the responsibility of the Party incurring that debt. In the event that the other Party is required to pay the debt, the Party incurring the debt will indemnify and keep indemnified the other Party for all costs, expenses and losses related to the debt.

(o) Neither Party will incur any further debt or liability on the other Party's credit. Any debt incurred as of the date of this Agreement is the debt of the individual Party, regardless if the debt was incurred as a result of joint credit.

(p) As of the date of this Agreement, the Parties must not borrow money or incur debts in the other Party's name or for which the other Party would be responsible.

(q) As of 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 interests of either Party form part of the Financial Circumstances of that Party as disclosed in this Agreement.

(b) 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 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.

(d) The Parties agree that this clause is intended to deal with all superannuation interests of the Parties in accordance with Part VIIIB of the Act, and operates as a final settlement of all such interests between the Parties.

(7) GENERAL RELEASE

Each Party releases all claims whatsoever and however arising, whether under the laws of New South Wales or any other jurisdiction, including and without limiting the generality of the foregoing, whether arising by statute or at common law and including actions found on constructive trust, resulting trust, or unjust enrichment, which such Party may now or hereafter have or acquire or be entitled to against the property of the other Party, however and whenever acquired, including and without limiting the generality of the foregoing, real property, personal property, any income from such property or assets of the other Party and any increase in the value of such property, or against the estate of the other Party, but if any such action should be brought, the provisions of this Agreement may be pleaded as an answer to any claim asserted and will constitute a full and complete defense thereto.

(8) GENERAL PROVISIONS

(a) This Agreement contains the entire agreement between the Parties about their relationship with each other. It replaces any earlier written or oral agreement between the Parties.

(b) The Parties will promptly sign and give to the other all documents necessary to give effect to the terms of this Agreement.

Lorem ipsum dolor sit amet consectetur adipiscing elit sed do eiusmod tempor incididunt ut labore et dolore magna aliqua ut enim ad minim veniam quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat duis aute irure dolor in reprehenderit voluptate velit esse cillum dolore eu fugiat nulla pariatur lorem ipsum dolor sit amet consectetur adipiscing elit sed do eiusmod tempor incididunt ut labore et dolore magna aliqua ut enim ad minim veniam quis nostrud exercitation.

(d) The Parties may only amend this Agreement in writing after both Parties have obtained legal advice on the changes.

(e) In the event that a dispute arises regarding this Agreement, the Parties will try to resolve the matter through negotiation or mediation before initiating a court action.

(f) Notwithstanding that the Parties acknowledge and agree that their circumstances at the execution of this Agreement may change for any reason, including but without limiting the generality of the foregoing, the passage of years, it is nonetheless their intention to be bound strictly by the terms of this Agreement at all times.

(g) The Parties agree to 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 of this Agreement form no part of it and have been included only for convenience.

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

(j) If the Parties reconcile, the terms of this Agreement will remain in effect unless the Parties revoke it in writing.

(k) This Agreement may only be terminated or amended by the Parties in writing signed by both of them.

(l) The law of New South Wales will govern 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.

IN WITNESS WHEREOF the Parties have duly affixed their signatures.


SIGNED by ________:


_________________________________
________

____________________
DATE

In the presence of:


_________________________________
WITNESS


_________________________________
WITNESS

SIGNED by ________:


_________________________________
________

______________
DATE

In the presence of:


_________________________________
WITNESS


_________________________________

WITNESS

SCHEDULE 1

________ Financial Assets, Income and Liabilities

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

________

SCHEDULE 2

________ Financial Assets, Income and Liabilities

The following is a complete, honest and accurate list of the financial circumstances of ________, including all assets, income 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

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 separate and apart at the time of signing this Agreement; 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

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 separate and apart at the time of signing this Agreement; 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 _________________________________

________

CERTIFICATE OF INDEPENDENT LEGAL ADVICE

I, _________________________________ (solicitor name) of _________________________________ (solicitor town/city) in _________________________________ (solicitor state/territory), Solicitor, hereby certify:

I met ________, a Party to the attached Financial Agreement ("Agreement"), in my professional capacity on this day, separate and apart from ________. I acted solely for ________ and consulted them in relation to their legal rights and liabilities under the terms of the Agreement. I fully explained to ________ the nature and effect of the Agreement in relation to their rights and obligations as well as the advantages and disadvantages of entering the Agreement. ________ executed the Agreement in my presence, and acknowledged and confirmed that they were doing so of their own volition, without any fear, threats, compulsion or influence from ________ or any other person(s).

CERTIFIED in _________________________________, _________________________________ (town/city, state/territory)

DATED this ______________ day of _________________________________

SIGNED _________________________________

PRINT NAME _________________________________

CERTIFICATE OF INDEPENDENT LEGAL ADVICE

I, _________________________________ (solicitor name) of _________________________________ (solicitor town/city) in _________________________________ (solicitor state/territory), Solicitor, hereby certify:

I met ________, a Party to the attached Financial Agreement ("Agreement"), in my professional capacity on this day, separate and apart from ________. I acted solely for ________ and consulted them in relation to their legal rights and liabilities under the terms of the Agreement. I fully explained to ________ the nature and effect of the Agreement in relation to their rights and obligations as well as the advantages and disadvantages of entering the Agreement. ________ executed the Agreement in my presence, and acknowledged and confirmed that they were doing so of their own volition, without any fear, threats, compulsion or influence from ________ or any other person(s).

CERTIFIED in _________________________________, _________________________________ (town/city, state/territory)

DATED this ______________ day of _________________________________

SIGNED _________________________________

PRINT NAME _________________________________