Financial agreements and lifestyle clauses – beware the risk – Family Law

In this week’s video, special counsel Craig Turvey discusses
financial agreements and lifestyle clauses in your family matter,
and how not to put these agreements at risk of being set aside.

Video transcript

My name’s Craig Turvey and I’m a special counsel at the
Cooper Grace Ward Family Law Team. And today, I’d like to talk
about financial agreements and lifestyle clauses.

Lifestyle clauses

So, lifestyle clauses are personal, sometimes moral issues that
people want to incorporate into a financial agreement sometimes.
So, for example, the main one is usually infidelity. Or sometimes
people will include things, or want to include things such as one
partner can’t gain a certain amount of weight, or even
sometimes that there needs to be a minimum level of intimacy each
week or within a certain timeframe. Those specific sorts of
lifestyle issues in and of themselves on binding or enforceable.
So, you can’t include them in a financial agreement.

Tying lifestyle clauses to financial connection

However, it’s in theory possible to include them if you can
tie them into a financial connection. So, for example, if you said
that you wanted a clause that if a partner who committed an act of
infidelity would receive a lower payment than they would otherwise
receive under the agreement, that of itself seems okay. However,
there’s a problem. One, in terms of proving these types of
things. So, infidelity, what does that mean? Also, if a partner is
likely to receive a penalty or a punishment in terms of a payment
or a monetary outcome from something like that, they’re not
usually very upfront about it.

Gathering evidence can be difficult

So, getting evidence about those sorts of things can be
difficult. And the other issue is enforceability. Judges are
generally loathed to enforce those sorts of clauses. One would open
up a Pandora’s box, in terms of what sorts of things could be
in agreements. And it’s also some of these types of things, a
moral type lifestyle, ambiguous sorts of issues that the courts
generally try to steer away from. So, we generally, when we’re
recommending to clients and they bring up those types of things, we
try to encourage people not to include those types of clauses in a
financial agreement. Again, it might be possible that you can
include it and it might be enforceable, but chances are it may also
not be. And the issue is, if you include something in the agreement
and it’s potentially not enforceable or binding, it might
attack the integrity of the entire agreement itself. So, to try and
include something like that, that possibly puts the entire
agreement at risk of being set aside is generally not a sound
idea.

If you’re looking at entering into a financial agreement or
if you have any questions about financial agreements, please
don’t hesitate to contact me or one of the other family lawyers
at Cooper Grace Ward.

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Cooper Grace Ward Lawyers

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Brisbane.

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