Binding Financial Agreements

A Binding Financial Agreement, sometimes known as a prenuptual agreement, sets out the way some or all of the couples assets will be divided in the event the relationship breaks down.  A Binding Financial Agreement can also deal with spousal maintenance.

There are many names for Binding Financial Agreements, including;

• Pre-nuptial Agreements (commonly known as pre-nups),
• Post-nuptial Agreements (post-nups); and
• Cohabitation Agreements.

They are known by the courts as Binding Financial Agreements (BFA)

A BFA provides an agreement in advance for a division of assets if the relationship or marriage breaks down.

Virtually everyone at some stage in their lives will be in a relationship which is subject to the Family Law Act. Most defacto and same sex couples are, after 2 years, treated the same way as married couples.

Young  couples commence living together without any consideration of the legal consequences. Older couples seeking company can be deemed to be in a de Facto relationship  even if it was not their initial intention. On a separation and despite prior promises not to, a claim can be made.

Before considering solutions, an understanding of how the Court deals with those assets would be useful.

Binding Financial Agreements can be entered into before the commencement of a marriage, de facto relationships or even during or after a marriage or separation. relationship and even after separation.

BFA’s need to be set up correctly to be legally binding. To be binding, there are certain requirements that BFA’s need to meet, if these items are not met, then the agreement can be void or set aside.

It is advisable that a BFA be reviewed every 24 months or after, during any changes in relationship.

A correctly executed BFA may provide some degree of certainty to the parties and thus avoid unnecessary arguments, in the event that a relationship ends, as they have agreed in advance as to how the property will be divided.

It can also make parties feel secure knowing that the property they have accumulated before the relationship or marriage is safe. By reaching agreement in advance, the issues that occur after a break up are more likely to be carried out without costly legal expenses or court delays.

Binding Financial Agreements can provide comfort to relationships if issues arise.