What’s the Binding Financial Agreements and Prenuptial Agreement Australia?
Prenuptial Agreement Australia (otherwise known as Binding Financial Agreements “BFA”’s) can be drawn up prior to, during, or after a relationship/marriage. BFA’s set out how all or any assets or liabilities will be divided in the event of a breakdown of your relationship. This means that the assets and liabilities in the parties’ possession at the time of entering into the agreement can be accounted for and so can any accumulated during the relationship. This also includes superannuation.
Prenuptial Agreement Australia and more information relating to Pre Nups & Binding Financial Agreements in Brisbane can be found on our blog.
Spousal maintenance may also be considered in a BFA.
If you are contemplating marriage or entering into a de facto relationship it is a good idea to have a competent lawyer advise you on the pros and cons of doing so. It may be in your best interests not to enter into a BFA under certain circumstances.
People enter into BFA’s after a relationship to account for special terms that the Family Court may not make whilst apply for Consent Orders. In this instance BFA’s provide future security and certainty so that you can make special arrangements that the Court may not make for a number of reasons. This may be for reasons as simple as they may feel that such a decision would prevent the matter from returning to the Court to such reasons as the Court not believing such a division is fair.
BINDING FINANCIAL AGREEMENTS: Some Helpful Advice If You Are Considering Entering Into A Financial Agreement.
We will often have clients come and talk to us about BFA’s. Many have done some research on the internet and have formed the view that they are not worth the paper they are written on. If they are done properly they will hold up to any scrutiny and will remain as binding as a Court Order. If the right steps and proper drafting are not done then a Court may have no issue in setting the BFA aside and then your property will be dealt with according to Australian Family Law.
Solicitors are required to advise the parties entering into a Financial Agreement on the advantages and disadvantages of entering into Binding Financial Agreements. The advice will need to be written and this is referred to as Independent Legal Advice. This means the parties can sign a certificate attached to the agreement that they have received this independent legal advice. The solicitors also sign certificates stating that they provided the advice required prior to the parties signing the agreement.
The advice not only needs to set out the advantages and disadvantages, and your rights and obligations on entering into the BFA it must also advise what would happen if the agreement were set aside and your rights and obligations should you be subject to Australian Family Law under case law and the Family Law Act 1975.
Helpful Hint: You will very likely find a lawyer who will witness your signature on an agreement you or someone else has drafted and tell you what the Prenuptial Agreement Australia means. They will then sign the certificate stating that they have given you independent legal advice. They may do this for only a few hundred dollars. If you have not received full written advice as set out on this page it will fall over if challenged. Then it will not be worth the paper it is written on.
BFA’s are drafted according to the section your circumstances fall under the Family Law Act 1975. You will need to have the agreement drafted pursuant to different sections depending on whether you are in, intending to enter, or are ending a de facto (link to de facto page ) relationship or marriage. The same weight is attributed to both relationships under the Family Law Act 1975 and this is the same for same-sex couples. (Link to same-sex couples page)
To obtain the required written independent legal advice first detailed instructions of the relationship must be obtained by the solicitor. This includes:
- Financial and non-financial contributions coming into the relationship;
- Financial and non-financial contributions during the relationship (if it has already commenced);
- The ages and qualifications and employment histories of the parties;
- Any foreseeable future factors that may inhibit a party supporting themselves in the future related to health or other factors; and
- Any other factors that may impact a party in a financial or other fashion in the future such as the presence of control, coercion, or domestic violence during the relationship.
Article Source: Prenuptial Agreement Australia – https://www.jamesnoblelaw.com.au/services/prenuptial-agreements-bfa/