How do you end a Binding child support agreement?
It is extremely difficult to amend or end a binding child support agreement when it is already in place. This being said, there are limited circumstances where they can be ended, though this normally only takes place with the start of a new agreement. Thus, whether or not you can end or change your binding child support agreement will depend on what your binding agreement covers and how it was drafted.
What is a binding child support agreement?
A binding child support agreement is a formally recognised document that allows parents to agree on financial payments regarding their child. It is a requirement that both parties have received their own independent legal advice before proceeding with a binding child support agreement. Independent legal advice means that you cannot share advice given to your ex partner and you must not have been advised by the same legal practitioner. This legal advice also must have been provided by a legal practitioner that has been admitted to the Supreme Court within Australia.
This is very important as the Registrar can determine that your agreement is not a functional binding child support agreement if it believes the advice you obtained was not independent.
Other requirements needed for a valid binding child support agreement include:
- That the document be in writing
- That the document is signed by both parents or by the relevant guardians
- Include a document stating that each party has obtained their own, independent legal advice
- That this legal advice obtained included both parties being aware of the advantages and disadvantages of a binding child support agreement being made
- Include a signed document from the individual who gave the legal advice, certifying that the stated advice was provided before the signing of the agreement.
What does a binding child support agreement cover?
The agreement allows parents to agree on child support payments. The amount of child support can vary and be more or less than what would be paid under a child support assessment.
A parent or guardian is only eligible for child support payments if they take equal to or more than 35% responsibility for a child. A binding child support agreement means that parents must:
- Pay the appropriate amount of child support, as specified by the agreement
- Pay their child support on time
- Lodge their tax return on time
- Report their income correctly
How do I amend or end my binding child support agreement?
It is easier to amend or end a binding child support agreement if the agreement has been drafted in such a way that a change or end is supported.
For example, including a section which acknowledges how your child support agreement may be changed if there is a change in child care circumstances will mean that the agreement is more easily amenable.
However, it is most common for binding child support agreements to end when the old one terminates and a new agreement is put in place. This can occur by creating a new agreement that contains a provision that specifies the end of the previous agreement.
Parents can also end a binding child support agreement by entering into a termination agreement. This occurs when both parents express in writing that they agree to terminate the previous agreement.
If you and your ex partner are unable to agree you may also consider applying to the court to have your agreement set aside. This, however, includes a very costly and time consuming court application. It may also involve having to prove that the binding agreement was obtained by duress, fraud or unconscionable conduct.
Section 136 of the Child Support (Assessment) Act 1989 also allows for an agreement to be terminated in ‘exceptional circumstances’, given that it causes undue hardship to the child or to a relevant party. This will most likely be difficult and costly to prove.
If you need any assistance regarding your binding child support agreement, feel free to reach us via the contact form.
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