BINDING FINANCIAL AGREEMENT MARRIED BUT SEPARATED

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What is included

Married but separated: s 90C

 

A  Separation agreement is intended to avoid the need for Court proceedings. It is a versatile document as it can be entered into before or during marriage, after separation or after divorce in order to record an agreement as to the division of assets between the parties. 

Agreement for parties who are  still legally married but separated. Fully formatted in Microsoft Word, ready to download edit and use. 14 pages long.

  1. Assets and liabilities.
  2. Payment
  3. Transfer of real property.
  4. Sale of real property.
  5. Moveable possessions.
  6. Superannuation.
  7. General provisions.
  8. Maintenance [delete if not applicable]
  9. Independent legal advice.
  10. Taxes.
  11. Claims for provision out of the estate of a deceased party.
  12. Notices.
  13. Governing law and jurisdiction.
  14. Further assurance.

Execution page.

ANNEXURE A – Assets and liabilities.

Statement under section 90G of the Act 1975.

Separation declaration pursuant to section 90D Act 1975.

 

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BFA MARRIED BUT SEPARATED
What is it?

A Binding Financial Agreement (BFA) in the context of a separation is a legal document that outlines the financial arrangements between two individuals who are separating but not yet divorced. This agreement specifies how assets, liabilities, and financial resources will be divided during the period of separation and potentially after the divorce is finalized. BFAs are governed by the Family Law Act 1975 in Australia and are designed to provide clarity, certainty, and finality to financial matters, avoiding the need for court intervention.

Key Elements

Key Features of a Binding Financial Agreement for Separation

  1. Legal Framework:

    • Governed by the Family Law Act 1975 in Australia.
    • Must comply with specific legal requirements to be binding and enforceable.
  2. Content of the Agreement:

    • Division of Assets and Liabilities: Specifies how property, assets, and liabilities will be divided during the separation and in the event of divorce.
    • 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 marriage will be handled.
    • Child Support and Custody Arrangements: Although child support is typically handled separately, a BFA may outline arrangements related to child support, custody, and living arrangements for children.
  3. Legal Advice:

    • Both parties must receive independent legal advice before signing the agreement.
    • Ensures each party understands the implications of the agreement and that their consent is informed and voluntary.
  4. 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.
  5. Formal Requirements:

    • Must be in writing and signed by both parties.
    • Should comply with any other formal requirements outlined in the Family Law Act.

Benefits of a Binding Financial Agreement for Separation

  1. Certainty and Finality:

    • Provides clear guidelines for the division of assets and financial arrangements, reducing uncertainty and potential disputes.
  2. Protection of Assets:

    • Allows individuals to protect their assets and ensure a fair distribution.
  3. Flexibility:

    • Can be tailored to suit the specific needs and circumstances of the couple.
  4. Reduction of Stress and Conflict:

    • Helps minimize conflict and stress by having financial matters agreed upon outside of court.
  5. Time and Cost Efficiency:

    • Can be more time-efficient and cost-effective than court proceedings.

Potential Issues and Considerations

  1. Changing Circumstances:

    • The agreement may need to be reviewed and updated if there are significant changes in circumstances, such as changes in financial status, health, or family dynamics.
  2. Fairness and Enforceability:

    • Courts can set aside a BFA if it is deemed unfair, fraudulent, or if it was signed under duress. Therefore, it is crucial that the agreement is fair and equitable.
  3. Independent Legal Advice:

    • Both parties must have independent legal advice for the agreement to be enforceable, which can add to the initial cost of creating the agreement.

Steps to Create a Binding Financial Agreement for Separation

  1. Discuss and Negotiate Terms:

    • The couple discusses and negotiates the terms of the agreement.
  2. Draft the Agreement:

    • A lawyer drafts the BFA, ensuring it meets legal requirements.
  3. Independent Legal Advice:

    • Each party seeks independent legal advice to understand the implications of the agreement.
  4. Sign and Certify:

    • Both parties sign the agreement, and their lawyers provide certification of the independent legal advice.
  5. Review and Update:

    • The agreement should be reviewed periodically and updated as necessary to reflect any changes in circumstances.

Creating a Binding Financial Agreement during separation can provide significant benefits by establishing clear financial arrangements and protecting the interests of both parties.

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