Even though the intent remains the same (ie. both parties agree not to make a claim on each other’s super as per clause 3 of your Agreement), each party still needs to be informed as to what that super actually is. Under the Family Law Act in order for this clause to be binding, you both need to actually disclose your super value to the other party, so you are making a fully informed agreement, otherwise it leaves the Agreement open to a challenge later on if either party changes their mind.
Even though these Agreement are binding, a Court does have limited powers to set them aside. One of the circumstances a court may set aside a Financial Agreement is if the Agreement was obtained by fraud – in this case, fraud includes non-disclosure of material matters.
Due to the binding nature of these types of Agreements, the Act attempts to ensure that each party is fully informed of all the material facts before they bind themselves to the Agreement and in doing so, giving up certain of their rights to apply to the Court for a property settlement. The Act goes to lengths to ensure that in a property settlement by way of a Financial Agreement, neither party hides or misrepresents the true value of assets and each person is fully informed of all material matters before entering into the Agreement.
So even though you may agree in principal, without complying with your disclosure requirements, you will inadvertently leave your Agreement open to be challenged if either party decides to do so, in the future. As you are going through the time and expense of getting the binding paperwork organised, it makes sense to make sure it is done properly in accordance with the standards laid out in the Act, so it can’t be challenged on a technicality later.
Full disclosure of the pool of assets is also necessary to enable your solicitor to fully advise you, as they are required to do under the Act, particularly, on the “advantages and disadvantages” of making the Agreement and the impact on your rights of making the Agreement. They cannot advise fully if they don’t know what the assets or part of the assets, are. I hope this helps to explain this subject.
There is more about this issue in your Users’ Guide, and your solicitor (when you access the Legal Review Package ) will be able to explain it further.