Key Features of a Binding Financial Agreement

Timing: A BFA can be made before, during, or after a de facto relationship. When made before the relationship, it is often referred to as a “prenup” or “pre-cohabitation agreement.”

Legal Framework: In Australia, BFAs  are governed by the Family Law Act 1975. The agreement must comply with specific legal requirements to be binding and enforceable.

Content of the Agreement:

Division of Assets and Liabilities: Specifies how property, assets, and liabilities will be divided if the relationship ends.

Spousal Maintenance: Addresses any spousal maintenance arrangements, including whether one party will provide financial support to the other and under what conditions.

Financial Resources: Details any other financial resources or entitlements, such as superannuation, and how they will be treated.

Debt Responsibility: Clarifies how debts incurred before or during the relationship will be handled.

Legal Advice: Both parties must receive independent legal advice before signing the agreement. This ensures that each party understands the implications of the agreement and that their consent is informed and voluntary.

Certification: The agreement must include a statement from each party’s lawyer confirming that they have provided independent legal advice regarding the advantages and disadvantages of the agreement.

Formal Requirements: The BFA must be in writing and signed by both parties. It should also comply with any other formal requirements outlined in the Family Law Act.