At present, the Family Law legislation allows people who marry and those in de facto relationships to enter a Binding Financial Agreement. The purpose of a Binding Financial Agreement is to act now to eliminate the emotional and financial cost of litigation should a relationship break down in the future.
A well drafted Binding Financial Agreement excludes the jurisdiction of the Family Court in relation to financial matters should their relationship breakdown, which means that the court has no power to make orders altering property interests or to make a spousal maintenance order.
When can binding Financial agreements be entered into?
- Either before a marriage or de facto relationship.
- During a marriage or de facto relationship.
- After divorce or separation of either a married couple or couple previously in a de facto relationship.
At present, both parties to the agreement must have obtained and a certificate verifying that they have each received independent legal advice. This form of agreement cannot be entered without engaging a lawyer.
Can I enter into a binding financial agreement quickly?
No. Binding Financial Agreements are complex technical legal documents that must fulfil the formal requirements set out in the legislation.
Entering into a Binding Financial Agreement takes time and they are not ‘last minute’ documents to be entered into by parties without much thought. Proper time, consideration and resources must be given to drafting a Binding Financial Agreement to ensure that there is not any ground to set aside the agreement. This is because when drafted correctly a Binding Financial Agreement will stand as a bar to any further order notwithstanding the fact that if a court was asked to make the orders, even by consent, it would not do so because the orders were not just and equitable.
If you are contemplating entering into a binding financial agreement we recommend that you make an appointment and be prepared to allocate the necessary time and resources required to undertake the process properly.