Marriage Separation Agreement Template

What is a marriage separation agreement?

A marriage separation agreement is a binding financial agreement (BFA) made under section 90C of the Family Law Act 1975 (Cth). It is entered into by two people who are still legally married but have separated, or who are still together and wish to deal with financial matters during the marriage. Section 90C covers financial agreements made during a marriage - which includes the period after separation but before divorce.

The agreement allows separated spouses to divide their property, finances, superannuation, and other assets without going to court. Rather than filing an application with the Family Court and waiting for a judge to determine the outcome, both parties can negotiate and formalise their own property settlement through a private, legally binding contract.

A s90C agreement is the most common type of financial agreement used by separated married couples in Australia. You can make this agreement at any time after separation - you do not need to wait until the divorce is finalised, and you do not need to divorce at all. Many couples choose to settle their finances through a s90C agreement first and then apply for divorce as a separate step.

Because the same section (s90C) applies to agreements made both during the marriage and after separation, this template is suitable whether you are separating your finances while still in the relationship or formalising a property split after the relationship has ended.

When do you need a marriage separation agreement?

A marriage separation agreement is appropriate in a range of circumstances. You should consider this agreement if any of the following apply:

• You and your spouse have separated and need to divide assets - once a marriage has broken down, both parties need certainty about who keeps what. A s90C agreement provides that certainty without court intervention.
• You want to settle finances without the cost and stress of court - Family Court proceedings for property settlement can take 12 months or longer and cost tens of thousands of dollars. A BFA is faster, cheaper, and entirely private.
• You have agreed on how to split property and want to make it legally binding - a verbal or informal agreement between spouses is not enforceable. A properly executed s90C agreement prevents either party from later going to court for a different outcome.
• You want to deal with superannuation as part of the settlement - super is often one of the largest assets in a marriage. A s90C agreement can include a superannuation splitting clause to divide super interests between the parties.
• You are separated but have not yet divorced, or do not plan to divorce - there is no requirement to be divorced before making a financial agreement. Many couples remain legally married for months or years after separating and use a s90C agreement to finalise their financial affairs in the meantime.

If you have already divorced and need to formalise a financial settlement, you will need a section 90D agreement instead. Our divorce financial agreement template covers that scenario.

What does a marriage separation agreement cover?

A s90C separation agreement can deal with any financial matter arising from the marriage. Our template covers the following:

• Division of the family home - who keeps it, whether it will be sold, and how the proceeds are split
• Bank accounts and savings
• Investments and shares
• Vehicles and personal property
• Business interests
• Superannuation splitting
• Debts and liabilities - mortgage, credit cards, personal loans, and other debts
• Spousal maintenance - whether one party will provide financial support to the other, and on what terms

By addressing all of these matters in a single agreement, both parties can achieve a clean break and move forward with financial independence. The agreement replaces any entitlement either party would otherwise have to apply to the Family Court for property orders.

Requirements for a valid s90C separation agreement

For a marriage separation agreement to be legally binding under section 90C 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.
• The agreement must not have been terminated or set aside by a court.

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.

Marriage separation agreement vs consent orders

When separating spouses agree on how to divide their property, they have two main options for making the agreement legally binding: a binding financial agreement (BFA) under s90C, or consent orders filed with the Family Court. Both achieve a similar result, but they work differently.

A BFA under s90C 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. It is generally faster and cheaper than consent orders, and the terms remain private - they are not filed with any court or government body.

Consent orders are filed with the Family Court and must be approved by a registrar or judge. The court will only approve consent orders if it is satisfied the proposed orders are "just and equitable." Once approved, consent orders are enforceable as court orders, which means a breach can be dealt with through contempt proceedings.

Most couples who have reached agreement on the property split find a BFA to be the faster and more affordable option. However, if there is a risk that one party may not comply with the terms, consent orders may provide stronger enforcement mechanisms - seek legal advice if you prefer the court route.

Marriage separation agreement vs divorce financial agreement

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

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

You do not need to be divorced to make a s90C agreement. In fact, most separated married couples settle their finances under s90C while they are still legally married. Many couples then apply for divorce separately once the financial matters are resolved.

If you have already obtained a divorce order and still need to divide property, you will need to use a s90D agreement. Our divorce financial agreement template is designed for that situation.

Superannuation splitting on separation

Superannuation is often one of the most significant assets in a marriage, and it can be split as part of a s90C financial agreement. Superannuation splitting allows one party's super balance to be transferred (in whole or in part) to the other party's super fund.

Our "Separation + Super Split" tier includes a superannuation splitting clause drafted specifically for inclusion in a s90C agreement. This is particularly important when there is a significant gap in the super balances of the two parties - for example, where one spouse has been the primary income earner and the other has taken 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.

Time limits for property settlement

There is no strict time limit for making a binding financial agreement after separation. You can enter into a s90C agreement at any time while you are still legally married, regardless of how long ago you separated.

However, if you later divorce without having made a financial agreement, a strict time limit applies: you have only 12 months from the date of divorce to apply to the Family Court for property orders under section 44(3) of the Family Law Act. After that 12-month period, you will need the court's permission to proceed, which is not guaranteed.

Best practice is to settle property as soon as practicable after separation. Asset values can change, documents can be lost, and the longer you wait, the more complicated the process becomes. A BFA avoids the court time limit entirely - because the agreement is a private contract, it does not depend on the court's jurisdiction or deadlines.

Can a marriage separation 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 non-disclosure of a material matter, such as failing to disclose a significant asset or income source.
• 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.

The best protection against an agreement being set aside is to ensure full and frank financial disclosure by both parties and genuine independent legal advice. Our template includes a comprehensive financial disclosure schedule and is designed to be executed with proper ILA certificates.

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