Divorce Financial Agreement Template

What is a divorce financial agreement?

A divorce financial agreement is a binding financial agreement (BFA) made under section 90D of the Family Law Act 1975 (Cth). It is entered into by two people who have already divorced and need to divide their property, finances, and superannuation without going to court.

Section 90D sits within Part VIIIA of the Family Law Act, which governs all financial agreements between married and formerly married couples. While sections 90B and 90C cover agreements made before and during a marriage respectively, section 90D is the only type of BFA specifically designed for couples who are already divorced.

A s90D agreement allows formerly married couples to formalise their property settlement through a private, legally binding contract - without filing an application with the Family Court or waiting for a judge to decide the outcome.

When do you need a divorce financial agreement?

A divorce financial agreement is appropriate when any of the following apply:

• You and your ex-spouse have divorced and still need to divide assets - the divorce is finalised, but property and finances have not yet been settled.
• You didn't settle property before or during divorce proceedings - many couples obtain a divorce without first resolving their financial affairs, leaving the property settlement to be dealt with afterwards.
• You want to formalise an agreement without applying to the Family Court - a s90D agreement is a private contract that does not require court approval, making it faster and more affordable than court proceedings.
• You want to avoid the 12-month time limit for court applications after divorce - under the Family Law Act, you have only 12 months from the date of divorce to apply to the court for property orders. A s90D agreement sidesteps this limitation entirely.
• You've agreed on how to split property and want it legally binding - a verbal or informal agreement is not enforceable. A properly executed s90D agreement prevents either party from later going to court for a different outcome.

What does a divorce financial agreement cover?

A s90D financial agreement can deal with any financial matter arising from the former marriage. Our template covers the following:

• Division of the family home
• Bank accounts and savings
• Investments and shares
• Vehicles and personal property
• Business interests
• Superannuation splitting
• Debts and liabilities
• Spousal maintenance (if applicable)

Requirements for a valid s90D agreement

For a divorce financial agreement to be legally binding under section 90D of the Family Law Act, it must satisfy the following requirements:

• The agreement must be in writing and signed by both parties.
• Both parties must receive independent legal advice (ILA) from separate lawyers before signing. Each party must have their own lawyer - the same lawyer cannot advise both parties.
• Each lawyer must sign a certificate under section 90G confirming that they provided advice about the effect of the agreement on the rights of that party, and the advantages and disadvantages of making the agreement.
• Both parties must provide full and frank financial disclosure to each other. This means disclosing all assets, liabilities, income, and financial resources. Failure to disclose material information can be grounds for the agreement to be set aside.

Independent legal advice is the most critical requirement. Without valid ILA certificates, the agreement is not binding. If you need affordable independent legal advice, visit our lawyers page for options.

The 12-month time limit after divorce

Under section 44(3) of the Family Law Act, you have 12 months from the date of divorce to apply to the Family Court for property orders. After that 12-month period, you need leave (permission) of the court to proceed - and this is not guaranteed.

A s90D financial agreement has no time limit. It can be made at any time after divorce, regardless of how long ago the divorce was finalised. This makes a BFA particularly useful if the 12-month window has already passed or is about to expire.

If you are approaching or have exceeded the 12-month deadline, a s90D agreement is often the most practical and cost-effective way to formalise your property settlement without needing to seek the court's permission to file a late application.

Divorce financial agreement vs consent orders

When divorced couples agree on how to divide their property, they have two main options for making the agreement legally binding: a binding financial agreement (BFA) under s90D, or consent orders filed with the Family Court. Both achieve a similar result, but they work differently.

A BFA under s90D is a private contract between the parties. It does not require court approval. Both parties must receive independent legal advice, and the agreement takes effect once signed and the ILA certificates are attached. There is no time limit for making a s90D agreement after divorce.

Consent orders are filed with the Family Court and must be approved by a registrar or judge as "just and equitable." Consent orders must be filed within 12 months of the divorce, unless the court grants leave to file out of time.

Both are legally binding when properly executed. A BFA is often faster and more affordable because it does not require court involvement. However, consent orders may provide stronger enforcement mechanisms through the court's contempt powers.

If you prefer the court route, seek legal advice about consent orders as an alternative.

Divorce financial agreement vs separation agreement

The Family Law Act provides different sections for financial agreements depending on when the agreement is made in relation to the marriage:

• Section 90D - applies to financial agreements made after divorce is finalised.
• Section 90C - applies to financial agreements made during the marriage, including after separation but before divorce.

If you haven't divorced yet, you should use a marriage separation agreement (s90C) instead. A s90C agreement can be made at any time while you are still legally married, even if you have already separated.

Our marriage separation agreement template is designed for couples who are separated but not yet divorced.

Superannuation splitting after divorce

Superannuation can be split as part of a s90D financial agreement. Our "Divorce FA + Super Split" tier includes a superannuation splitting clause drafted specifically for inclusion in a s90D agreement.

Superannuation splitting is particularly important when there is a significant gap in the super balances of the two parties - for example, where one spouse was the primary income earner and the other took time out of the workforce to care for children.

When a financial agreement includes a superannuation splitting provision, the trustee of the relevant super fund must be served with a copy of the agreement. The fund trustee is bound by the agreement once properly served, and must give effect to the split in accordance with the terms of the agreement and the Family Law (Superannuation) Regulations 2001.

If you need to include superannuation splitting, choose our "+ Super Split" tier which includes the necessary clauses.

Can a divorce financial agreement be set aside?

Under section 90K of the Family Law Act, a court may set aside a binding financial agreement in certain circumstances. The grounds for setting aside include:

• Fraud - including failure to disclose material assets, income, or financial resources.
• Duress, undue influence, or unconscionable conduct - if one party was pressured or coerced into signing the agreement, or if the terms are so one-sided as to be unconscionable.
• The agreement is void, voidable, or unenforceable - for example, if the requirements for a valid agreement were not met (such as missing ILA certificates).
• Material change in circumstances - particularly where the change relates to the care, welfare, and development of a child of the relationship, and the child or the caring parent would suffer hardship if the agreement were not set aside.

Full and frank financial disclosure and genuine independent legal advice are the essential protections against an agreement being set aside. Our template includes a comprehensive financial disclosure schedule and is designed to be executed with proper ILA certificates.

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