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How to sign a financial agreement

It is true that the requirements for signing a financial agreement are a little different to those that apply to signing a standard contract.

The Family Law Act sets out specific requirements that must be met for signing financial agreements, in order for the agreement to be binding.

What does the Family Law Act say?

In order for a financial agreement to be binding, you must follow the process outlined at section 90G of the Family Law Act (or section 90UJ, which sets out the same requirements but for de facto couples), summarised below:-

  • First, you need to speak to a lawyer about your agreement and get legal advice about your document.
  • After providing the advice, your solicitor will issue you with a certificate confirming that you have received the legal advice as required by the Family Law Act.
  • You need to give the other party a copy of your lawyer’s certificate, and they will need to give you a copy of their certificate, confirming that they have received their prerequisite legal advice.
  • Initial each page of the agreement and sign the signing page at the end of the agreement in the presence of a witness.
  • Date the agreement as at the time of signing, remembering that your agreement must be dated after the date you have both received your legal advice.
  • Take as many copies of the signed agreement as you like.  One person should keep the original agreement that has been signed by both parties, the other person should keep a full copy.  Remember, you also need copies of your Solicitor’s Certificate, as well as a copy of the other person’s Solicitor’s Certificate.  Any related correspondence from your lawyer should also be filed away or stored in safe keeping with your documentation, including the letter of advice issued by your solicitor.

Independent lawyer’s advice – making sure you understand and agree to all the terms of your agreement before you sign

Before signing, it is important that you first read, understand and agree to all of the terms and conditions contained in the document.  This is one of the reasons why the law requires you both to obtain legal advice before you sign your agreement – so that you are both fully informed before you sign it.

Your lawyer will talk you through the agreement and what it means for you, including what you may otherwise have been entitled to receive under the law, and what rights you might be giving up if you sign the agreement (generally the right to begin proceedings with the Court).

Receiving independent legal advice means that you both have an understanding of the full ramifications of the agreement and what it means for you, and give fully informed consent to the terms and conditions contained in it when you sign.

Don’t sign the agreement if you are uncomfortable with any aspect of it.  It is extremely difficult to “get out” of the agreement once you sign it.  If you don’t agree with one or more of the terms of your agreement, try to renegotiate that aspect of it and reach a compromise you are both happy with before you sign it.

The only way that you can end a financial agreement is by making a “Termination Agreement” with the other party, under which you both agree to terminate the agreement.  Alternatively, you can renegotiate a fresh financial agreement, and include a clause in the new agreement which purports to terminate the old agreement.  The other party may not agree to the changes you want – and if he or she does agreement, making a termination agreement or a fresh agreement means more time and money, so it is vital to make sure you are happy with your agreement before you finalise it.

If you have any questions or concerns, it is imperative you raise them with your lawyer and address them upfront and definitely before you sign your agreement.

Initial each page of the agreement

Although not a legal requirement, it is common practice for the parties to initial each page of the agreement.  By doing so, this indicates each party’s agreement to the provisions on each page and makes it harder (but not impossible) for the contract to be tampered with by replacing the pages.

The signing page

A formal signing page will usually appear at the end of the document.  Sometimes, schedules or attachments will follow on after the signing page (such as the Assets and Liabilities tables), so this means the signing page will not always be featured as the very last page of the agreement, but it will generally be somewhere towards the end of the document.

The signing page will contain a space for your signature.  Make sure you use your normal signature and it is clear.

You may also be asked to complete your full name, address and other details.  It is important that you insert the specific names, dates, titles, etc. in clear writing.

Where block letters are required make sure it is legible and that you have not placed signatures in those sections.

Signing your Agreement in separate locations

Sometimes it is not convenient or possible to sign the document at the same place and time as the other person.  In this case, you can sign it separately.  The first person will sign and witness the agreement and post it to the second party for signing.  The second party can then attend to signing and witnessing the document, and will be responsible for ensuring that the other party gets a full copy of (or the original of) the fully signed agreement.

At the end of the process, each party must have either a full copy, or the original of, the fully signed agreement, and each of the solicitor’s certificates.

Witnessing your agreement

Make sure you use a high quality witness for your agreement, rather than a friend or family member.

We recommend a Justice of the Peace witness your agreement.  They have an understanding of the legal ramifications of signing and they are independent of both parties.  You could also use:

  • A Solicitor;
  • A Notary Public;
  • The Duty Officer in charge of a Police Station; or
  • A Court officer.

Identification may be requested so that your witness can verify your identity and this adds another layer of security to your agreement.  Your witness does not need to have read or understood the document itself, only verify that the person signing it is who they say they are.

Dating your agreement

A space to handwrite the date usually will appear on the first page of your agreement or the signing page located towards the end of your agreement.

Remember that you must sign and date your agreement after the date you received your legal advice, to ensure are fully informed of the legal ramifications of signing the agreement.

Originals and copies of your agreement

After the agreement has been signed by both yourself and the other party, each party must be retain the original, or a full copy, of the original fully signed agreement.  You can take as many additional copies of the original document as you wish.  Store these in a safe place.  You should store you’re your solicitor’s correspondence in a safe place also.  You may wish to copies of your signed agreement to your lawyer or other trusted person for safekeeping.