Binding Financial Agreement

A Binding Financial Agreement, also known as a pre-nuptial agreement, protects your property interest(s) in the event of divorce or separation. You may enter into a binding financial agreement, before, during or after a relationship. This is an effective way of reducing any financial risk and avoiding future conflict. With more than one third of marriages and de-facto relationships in Australia ending in divorce or separation, it is more important than ever to ensure your hard earned assets are protected. Book a free consultation with our Family Law team to get started.

Is a binding financial agreement enforceable?

A BFA is a contract entered into by two spouses and is legally binding if it is properly drafted. It offers certainty and peace of mind and is less expensive than a property settlement. Rather than involving the Family Court. Keep in mind that if you are getting a divorce in Adelaide, a binding financial agreement must be made within twelve (12) months of a divorce order. A BFA will protect you in several ways by clearly governing: spousal maintenance, superannuation, property division, finances and more. As with any contract, it is important to seek out independent legal advice. Failure to do so or using a “DIY” kit may render your binding financial agreement void.

What kind of binding financial agreements are there?

There are several types of financial agreements available to accommodate different kinds of relationships. The family law team at Stanley & Co Lawyers are experts at drafting enforceable binding financial contracts for various situations:

• After the end of a de facto relationship;
• During a de facto relationship;
• In contemplation of a de facto relationship;
• After a divorce;
• During marriage including separation but before divorce; and
• In contemplation of marriage.

What is the difference between a consent order and a binding financial agreement?

If your relationship has ended it may be more appropriate to file Consent Orders with the Family Court. Once your Consent Orders are filed, the Court will make the requested orders and they become binding on the parties. Consent Orders are harder to set aside than binding financial agreements. If you need help with Consent Orders, click here.

Helpful Questions & Answers

What is the difference between a consent order and a binding financial agreement?

If your relationship has ended it may be more appropriate to file Consent Orders with the Family Court. Once your Consent Orders are filed, the Court will make the requested orders and they become binding on the parties. Consent Orders are harder to set aside than binding financial agreements. If you need help with Consent Orders, click here.

Why should I get a financial agreement?

Without a binding financial agreement, you are left at the mercy of the Family Law Court. If this occurs, it is up to a judge to decide what you get and what you don’t get.

Is my current financial agreement legally binding?

Schedule a free thirty-minute consultation with our family law team if you have concerns about your current financial agreement or wish to get a second opinion. To ensure your agreement is binding make sure the following are addressed as a minimum:

• Both parties signed the agreement and received independent legal advice;
• The agreement has not been set aside by the Family Law Court or terminated;
• One party has the original signed copy and the other holds a certified copy;
• A statement from each side’s lawyers is attached advising them of the advantages and disadvantages of signing the agreement plus a certificate signed by their lawyers; and
• A separation declaration has been made and signed stating that the parties have separated and living apart with no prospect of reconciliation.

What if I am in a de-facto relationship?

The same rules apply to de facto relationships except for Western Australia. There are few differences in drafting a binding financial agreement for de-facto and married couples. The law also applies to same sex de-facto couples. If you want advice about legally binding financial agreements talk to a family lawyer or call us today for a quick chat.

How do I get out of a binding financial agreement?

It’s important to speak with a family law specialist in Adelaide if you wish to get out of a binding financial agreement. Cases relating to binding financial agreements have wide range of outcomes, and no two cases are the same. These agreements continue to operate even after the death of a party and can affect the estate of the deceased even if it is not explicitly written in the agreement.

Generally, there are a few ways to “get out” of such an agreement:

1. If the parties wish to terminate the agreement, they may do so through a formal termination agreement;
2. A binding financial agreement may also be terminated if a specific event occurs. This must be included in the agreement itself using special clauses indicating what occurs in that event;
3. You may also apply to the Family Court to have a binding financial agreement “set-aside”. Ultimately, the Court will use its discretion whether to exercise its power;
4. If the agreement will cause hardship if there is a significant change in the circumstances of the parties’ child; or
5. If any vitiating factors that apply in the law of contract exist such as fraud, duress, unconscionable conduct, mistakes, incompleteness, breach public policy considerations.

Both Rich and Amra were excellent to deal with having used them both on separate occasions. I was extremely happy with the two seperate outcomes I was looking for. Excellent service, no fuss straight down the line attitude is what made them my number one firm to go to with such complex cases. Extremely recommended.