Section 90C Family Law Act: Financial Agreement Rules

What Section 90 of the Family Law Act Covers

The financial agreement provisions for married couples are in Part VIIIA of the Family Law Act, beginning with definitions in section 90A. Sections 90B, 90C and 90D identify agreements made at different stages of marriage. The following provisions address when terms take effect, maintenance and binding requirements, then death, termination and enforcement.

There is also a standalone section 90. It sits in Part VIII and deals with certain instruments being exempt from duty. A reference to a financial agreement under “section 90” therefore needs the letters that identify the actual provision.

Part VIIIAB deals with financial matters arising from de facto relationships. Its financial agreement rules sit in Division 4. Use the Act’s table of provisions to distinguish these Parts before reading a section in isolation.

Relationship stage	Marriage provision	De facto provision
Before the relationship begins	Section 90B, before marriage	Section 90UB, before the de facto relationship
During the relationship	Section 90C, during marriage	Section 90UC, during the de facto relationship
After the relevant ending event	Section 90D, after a divorce order	Section 90UD, after relationship breakdown

The two columns use different ending events. A married couple can separate while remaining married. A de facto relationship can end without a divorce process.

Section 90B: Agreements Before Marriage

Section 90B allows people contemplating marriage to make a written financial agreement before they marry. The agreement must say it is made under section 90B. The couple must not already be spouse parties to another binding financial agreement covering the same matters.

The agreement can deal with property or financial resources held when it is made, or acquired later and before divorce. It sets out how those matters will be dealt with if the marriage breaks down. Maintenance can cover the marriage, the period after divorce or both.

Section 90B also permits incidental or ancillary matters and other matters. The section permits other people to join the agreement alongside the couple. For practical guidance for couples, use the separate prenuptial agreement guide.

Section 90C: Agreements During Marriage

A section 90C financial agreement is a written agreement made by parties to a marriage about the matters that section permits. Section 90C(2A) expressly allows it before or after the marriage has broken down. It can therefore be a post-marriage financial agreement signed while the couple live together, or an agreement signed after separation while they remain married.

Property and financial resources can include assets held when the agreement is signed and assets acquired later during the marriage. The agreement addresses how these will be dealt with on marriage breakdown. Maintenance can apply during marriage or after divorce.

In a hypothetical example, one spouse receives an inheritance after ten years of marriage. The spouses use section 90C to record how that property will be treated if the marriage ends. In another example, a spouse starts a business and the couple agree how their interests will be dealt with on breakdown. These examples explain the provision’s use without predicting the terms suitable for a particular couple.

A section 90C financial agreement template must identify its statutory basis. The agreement must expressly state that it is made under section 90C of the Family Law Act 1975. A heading that says only “financial agreement” does not supply that statement.

The document must also deal with a matter allowed by section 90C. Check for an existing binding agreement covering that matter and then apply section 90G. A recital naming section 90C does not itself establish that the agreement is binding. The binding financial agreement guide covers practical preparation, while the property settlement agreement guide covers formalising a split.

Section 90D and 90DA: After Divorce and the Separation Declaration

Section 90D allows an agreement after a divorce order is made, whether or not the order has taken effect. It covers property or financial resources held or acquired during the former marriage, and maintenance. The written agreement must identify section 90D as its basis and satisfy the other applicable requirements.

Section 90DA governs when specified property and financial-resource terms of an otherwise binding agreement take effect. Terms dealing with those matters on marriage breakdown have no force or effect until a separation declaration is made. Other terms can operate, subject to section 90DB.

The separation declaration is written and signed by at least one spouse party. It states that the spouses have separated and are living separately and apart. It also states the signing spouse’s opinion that there is no reasonable likelihood of resuming cohabitation. The declaration can be included in the financial agreement.

Under section 90DA(1A), the declaration requirement ceases when the spouses divorce or either spouse dies. This separates two questions: whether the agreement is binding and whether its particular terms have taken effect. Read the separation declaration provision alongside the agreement’s operative clauses.

Section 90E and 90F: Maintenance Terms

Section 90E makes a maintenance provision void unless it identifies the person receiving maintenance and the amount provided or attributable property value. The rule covers a spouse party and a child or children. Where property supplies maintenance, the provision must specify the value attributable to the relevant person’s maintenance.

Section 90F preserves the court’s maintenance power in a defined circumstance. The court considers the recipient’s position when the agreement came into effect, taking its terms and effect into account. If the person then could not support themselves without an income-tested pension, allowance or benefit, the agreement cannot exclude or limit that power.

A general sentence saying that each spouse waives maintenance therefore does not answer every statutory question. The person’s circumstances at the relevant time and the wording of the maintenance terms still matter.

Section 90F(2) also confirms that a term retaining property or financial resources in one spouse’s ownership counts as dealing with those matters. An agreement can preserve ownership as well as provide for a transfer.

Section 90G: When an Agreement is Binding

Section 90G requires signatures, independent legal advice and the signed statements recording that advice. Under its ordinary pathway, all these requirements apply:

• All parties sign the agreement.
• Before signing, each spouse party receives independent legal advice from a legal practitioner about the agreement’s effect on their rights.
• That advice also covers the advantages and disadvantages of making the agreement, assessed when the advice is given.
• Each spouse party receives the practitioner’s signed statement confirming the advice, either before or after signing.
• A copy of each statement goes to the other spouse party or that party’s legal practitioner.
• The agreement has not been terminated or set aside by a court.

The signed statement need not be annexed to the agreement. The timing distinction matters: legal advice precedes signing, while the signed statement can be supplied afterwards.

Sections 90G(1A) and (1B) provide a separate court pathway when an advice or statement requirement was missed. All parties must still have signed. The agreement must also remain unterminated and not set aside.

The court must find it unjust and inequitable if the agreement were not binding, disregarding changes in circumstances since it was made. A spouse seeking enforcement applies for an order declaring it binding. A missed requirement does not automatically disappear because the parties intended a binding agreement.

Section 90G(2) allows the court to make necessary enforcement orders for a binding agreement. Keep evidence of advice and delivery of statements with the agreement so the statutory steps can be established.

Sections 90UB to 90UD: De Facto Agreements

Sections 90UB, 90UC and 90UD provide the before, during and after-breakdown financial agreement pathways for de facto relationships. Each requires a written agreement expressed to be made under its particular section. They cover distribution of property or financial resources and maintenance, with the statutory conditions applying to each pathway.

Section 90UC applies while the parties are in a de facto relationship. Once that relationship has broken down, section 90UD is the relevant after-breakdown provision. This differs from section 90C, which expressly permits agreements after marriage breakdown while the parties remain married.

Section 90UH requires maintenance terms to identify the beneficiary and amount or attributable property value. Its exception concerns agreements brought within Part VIIIAB through section 90UE. Section 90UI preserves the court’s maintenance power where the statutory income-tested support condition applies.

Section 90UJ supplies the ordinary binding requirements and a court declaration pathway comparable to section 90G. It also provides that a Part VIIIAB financial agreement ceases to bind if the parties later marry each other. Sections 90UF and 90UG address when specified terms take effect.

Western Australian de facto financial agreements generally use Part 5A of the Family Court Act 1997 (WA), rather than the Commonwealth Part VIIIAB pathways. Interstate connections can require consideration of the Act’s geographical and transition rules. Western Australian de facto superannuation has its own Commonwealth provisions, described below.

Where Setting Aside and Ending Agreements Sit

Termination, setting aside and enforcement sit in different sections, so identify the action before selecting the authority. These are the main provision pairs:

Function	Married agreements, Part VIIIA	De facto agreements, Part VIIIAB
Termination	Section 90J	Section 90UL
Setting aside	Section 90K	Section 90UM
Validity, enforceability and effect	Section 90KA	Section 90UN
Enforcement orders for binding agreements	Section 90G(2)	Section 90UJ(4)
Operation after a party’s death	Section 90H	Section 90UK

The guide to setting aside a binding financial agreement explains the grounds and tests. The table identifies where those provisions sit without combining them with termination by agreement.

Superannuation agreements sit in Part VIIIB. Section 90XH allows superannuation terms within a Part VIIIA financial agreement. Section 90XHA does the same for a Part VIIIAB financial agreement. Their effect and enforcement follow Part VIIIB.

For Western Australian de facto agreements, Part VIIIC contains the superannuation rules, including section 90YK. Use the separate superannuation splitting guide for splitting mechanics and trustee steps.

Reading the Current Version of the Act

The Federal Register of Legislation identifies the latest compilation and provides earlier versions of the Family Law Act. Start with the Act’s current text, then select the relevant Part and section.

The compilation’s endnotes help trace changes. Endnote 3 lists amending laws and commencement information. Endnote 4 records the amendment history of individual provisions. Application, saving or transitional rules can also affect which wording governs an older agreement.

Commentary written before recent amendments can describe earlier wording or section numbers. Property-law changes under the Family Law Amendment Act 2024 affect surrounding provisions even where an agreement section’s wording remains the same. Read the agreement’s governing section and its cross-references together.

For a married couple who separated after ten years, record whether a divorce order has been made before choosing section 90C or 90D. Then check the binding requirements separately from the rules that activate individual terms. That sequence keeps the statutory basis and the agreement’s operation distinct.