Financial Agreements
Financial Agreements
From financial agreements, to prenuptial agreements and working through complex financial issues, our lawyers are experts when it comes to these matters.
What is a ‘Binding Financial Agreement’?
You may have heard of a pre-nuptial agreement, or a ‘pre-nup’, in Australia these are known as a Binding Financial Agreement (‘BFA’). You can enter into a BFA at any stage of your relationship, including during the relationship or after separation.
A BFA addresses the division of property (including both superannuation and non-superannuation assets) in the event of separation between you and your partner or spouse. It also can provide for the payment of spousal maintenance.
BFA’s exclude the jurisdiction of the Family Court to deal with your financial separation. This means that, if you enter into a BFA, you and your partner agree that, in the event of separation, or in the course of your separation, your division of assets and liabilities will be governed by the terms of the Agreement, and not by a decision of the Court. However, the Court retains the right to set aside your Agreement should it be found to be unenforceable or entered into under duress or by fraud.
Binding Financial Agreements before marriage or the commencement of a de facto relationship
BFA’s can be made before marriage and prior to the commencement of a de facto relationship, pursuant to section 90B (for married relationships) or section 90UB (for de facto relationships) of the Family Law Act 1975.
Section 90B or 90UB BFA’s detail the assets and liabilities of you and your spouse, including property that you have brought into the relationship and your joint property as at the date of executing the agreement. Their purpose is to specify the terms for how those assets are to be divided in the event of separation, as well as how to deal with the assets that you and your spouse or partner acquire during the marriage or relationship.
These types of agreements are common for couples who are entering into a second marriage, or who own assets prior to marriage and wish to keep those assets as separate property.
Our Tip
If you are considering entering into a BFA before marriage, make sure you obtain legal advice well before your wedding. It is important to leave sufficient time between formalising your agreement and the date of the wedding. A recent High Court decision has highlighted the risks of a BFA being signed too close to the wedding date, as it leaves “ink on the wedding dress” – see Thorne v Kennedy [2017] HCA 49.
Binding Financial Agreements during marriage or a de facto relationship
You may also enter into a BFA during your marriage or de facto relationship. These agreements are made under section 90C (for married relationships) or section 90UC (for de facto relationships) of the Family Law Act 1975.
Often couples decide to enter into this type of agreement where they wish to set out their financial rights and responsibilities in the event of a future separation.
Similarly, married couples may choose to enter into this type of financial agreement where they are separated but not yet divorced.
Binding Financial Agreements after separation
You may also enter into a Binding Financial Agreement to formalise your separation from your spouse or de facto partner. These agreements are made under section 90D (for married relationships) or section 90UD (for de facto relationships) of the Family Law Act.
Requirements – what you should know
In order for your BFA to be enforceable, the following requirements must be met:
- Both you and your spouse / partner must have obtained independent legal advice prior to signing the agreement; and
- Both you and your spouse / partner must possess a certificate from your legal practitioner confirming that they have advised you independently as to the effect of the agreement on your rights and entitlements under the agreement, and the advantages and disadvantages of you entering into the agreement.
Where to from here?
Contact us to discuss how we can assist you with your family law matter.
Book an Initial Consultation – We sit down with you for 90 minutes to gain a thorough understanding of your needs and your matter.
Attend a Free Family Law Seminar – Held in the Melbourne CBD, this is your chance to build your legal knowledge, get an understanding of the court process and ask questions to our lawyers before making any decisions.
Get Started Online – Ready to make a start? Answer a few questions and get a free personalised information pack tailored to your family law issue. We can also assemble your relationship history, which will help us reduce costs if you book in for an appointment.
Why choose Carew Counsel Solicitors?
Our lawyers are highly skilled and experienced in preparing and advising on your BFA.
We will help you work through any complex financial issues that may arise because of the terms of your agreement, enforcement of your agreement or from your separation.
We empower you, by helping you understand the system, the options and the advantages and disadvantages of different options.
We have experience working with a range of experts in family law, meaning that when you need outside assistance, such as valuations or accountancy advice, we can engage professionals who best suit your individual circumstances.