Section 90C of the Family Law Act governs binding financial agreements between separating couples. These agreements can protect your assets and streamline property settlements, but only when executed correctly.
We at Jameson Law see many clients struggle with the complex requirements that make these agreements legally enforceable. Understanding the procedural steps prevents costly mistakes that could invalidate your entire agreement.
What Section 90C Actually Covers
Section 90C of the Family Law Act 1975 applies specifically to married couples who want to establish financial agreements during their marriage. This provision allows spouses to determine how their property, assets, and financial responsibilities will be handled if they separate or divorce, which creates a roadmap for asset division without court intervention.
Property and Asset Coverage Under Section 90C
The section covers all forms of property acquired before, during, or after the marriage. This includes real estate, business interests, superannuation funds, investments, and personal assets. Section 90C agreements can also address spousal maintenance obligations, but Section 90E of the Act explicitly allows couples to make provisions for spousal maintenance in their BFAs.
The Family Law Act mandates that both parties must receive independent legal advice before they sign any agreement. Their legal practitioners must provide signed certificates that confirm this advice was given. Courts have consistently ruled that agreements without proper independent legal advice are unenforceable, as demonstrated in cases like Abrum & Abrum where inadequate legal consultation rendered the agreement invalid.
When Section 90C Becomes Essential
Section 90C agreements prove most valuable when couples have significant assets, complex business structures, or previous relationships with financial obligations. The agreement must be in writing and both parties must sign it to make it legally valid (unlike prenuptial agreements under Section 90B, which apply before marriage).
Section 90C applies after marriage has commenced but before separation occurs. Courts can set aside these agreements under specific circumstances outlined in Section 90K, which include fraud, failure to disclose material facts, or significant changes in circumstances that affect children involved.
Technical Requirements That Matter
The procedural requirements for Section 90C agreements are strict and non-negotiable. Each party must obtain independent legal advice from separate practitioners who understand family law. The legal adviser must explain the advantages and disadvantages of the agreement, the rights each party would have without the agreement, and how the agreement affects those rights.
These technical requirements exist because courts regularly scrutinise financial agreements for compliance with the Family Law Act. The next step involves understanding exactly how to obtain proper independent legal advice and what documentation you need to make your agreement bulletproof.
How Do You Execute Section 90C Agreements Correctly
The success of your Section 90C agreement depends on three non-negotiable procedural steps that courts scrutinise heavily. Each party must engage separate family law practitioners who understand the complexities of financial agreements. The legal adviser cannot represent both parties or have any conflict of interest, as demonstrated in Chetri v Thapa where the court found the husband’s solicitor who facilitated the wife’s engagement created improper influence.
Independent Legal Advice Standards
Your lawyer must provide comprehensive advice that covers your legal rights without the agreement, how the agreement changes those rights, and both advantages and disadvantages of the signature. Section 90G requires both parties to obtain independent legal advice about the advantages and disadvantages of entering into the agreement.
Courts consistently reject agreements where legal advice fails to meet statutory requirements. In Hoult v Hoult, the court established that legal representatives must detail implications beyond simple explanations to comply with Section 90G requirements. Your lawyer must provide a signed certificate that confirms they explained your financial contributions, legal entitlements, and how the agreement affects future claims (this certificate must be shared with the other party before the signature).
Documentation and Disclosure Requirements
Complete financial disclosure forms the foundation of enforceable agreements. Both parties must reveal all assets, liabilities, income sources, and financial commitments before they sign. Courts can set aside agreements under Section 90K if material facts were concealed or misrepresented, regardless of whether the non-disclosure was intentional.
Property valuations must be current and professionally prepared, especially for complex assets like business interests or investment portfolios. The agreement must be written in clear terms that specify exactly how property will be divided, what happens to jointly held assets, and any maintenance obligations.
Common Documentation Failures
Documentation failures occur when lawyers rush this process or provide template advice rather than personalised consultation based on your specific circumstances. Vague language or incomplete asset descriptions give courts grounds to declare agreements unenforceable when disputes arise later.
The court in Adame & Adame set aside a BFA due to fraudulent misrepresentation, which demonstrates how improper disclosure can invalidate even technically compliant agreements. Professional legal guidance becomes essential when you consider the timing requirements that can affect your agreement’s enforceability.
What Mistakes Destroy Section 90C Agreements
Section 90C agreements collapse when lawyers deliver template advice instead of comprehensive consultation that addresses your specific financial circumstances. The court in Chetri v Thapa declared a financial agreement non-binding after the wife received inadequate legal advice from a lawyer who maintained a conflict of interest with her husband’s representation. This case shows how poor legal representation invalidates your entire agreement despite technical compliance with documentation requirements.
Representation Failures Courts Consistently Reject
Courts examine the quality of legal advice with unprecedented scrutiny. Your lawyer must explain your property entitlements under the Family Law Act without the agreement, detail how the agreement alters those rights, and provide specific advice about maintenance obligations and superannuation division. Generic explanations or rushed consultations provide courts with grounds to set aside agreements under Section 90G.
The Federal Circuit and Family Court expects lawyers to invest sufficient time in your financial circumstances and explain complex implications rather than process paperwork mechanically. Your legal adviser cannot represent both parties or maintain any conflict of interest that compromises independent advice.
Documentation Errors That Invalidate Agreements
Property valuations older than six months at signature create enforcement risks that courts exploit when they set aside agreements. Professional valuations for business interests, investment properties, and complex assets must reflect current market conditions to satisfy disclosure requirements under Section 90K.
Incomplete asset disclosure or vague property descriptions create ambiguity that courts use to declare agreements unenforceable. The agreement must specify exactly how property division occurs, what happens to jointly held assets, and any maintenance obligations in clear, unambiguous terms.
Critical Timing Issues That Affect Enforceability
The timing of your agreement signature affects enforceability more than most couples realise. Agreements signed too close to separation dates face additional scrutiny from courts who question whether both parties had genuine opportunity for independent consideration of the terms and their long-term financial implications.
Courts also examine whether sufficient time elapsed between receiving legal advice and signature. The procedural timeline becomes particularly important when complex assets require detailed valuation or when one party needs additional time to understand the agreement’s implications.
Final Thoughts
Section 90C Family Law Act compliance demands meticulous attention to procedural requirements that courts examine with intense scrutiny. Your agreement’s enforceability hinges on genuine independent legal advice, complete financial disclosure, and proper documentation that meets statutory standards. The cases we examined show how technical failures invalidate even well-intentioned agreements.
Professional legal guidance becomes essential when you consider the complexity of property division, maintenance obligations, and disclosure requirements under the 90C Family Law Act. Courts consistently reject agreements where lawyers provide template advice rather than comprehensive consultation tailored to your specific financial circumstances. The Federal Circuit and Family Court expects thorough preparation and detailed analysis of your unique situation.
We at Jameson Law help clients avoid the common pitfalls that destroy financial agreements and provide the thorough legal advice courts expect (based on our experience with family law procedures and documentation standards). Our team focuses on proper execution of binding financial agreements that withstand legal scrutiny. Contact us today to protect your financial interests with properly executed agreements.
