Financial Agreement, Pre-Nups and Other Agreement

Binding Financial Agreements (also known as a Pre Nuptual Agreements and Post Nuptial Agreements) became part of the Family Law Act in 2000 and was introduced to allow people to be able to control their financial & proprietal affairs without the expense of litigation. A Binding Financial Agreement allows parties to document in writing who is to receive what upon the termination of a marriage and it affords each party protection that they will not end up having to pursue an expensive Property Matter in the Family Court in the future.

A Binding Financial Agreement may be made before, during or after marriage (however, within 12 months a divorce). 

The terms of the agreements can be varied at any time with the consent of both parties. In these circumstances, it is advisable to enter into a new agreement altogether.

If the Binding Financial Agreement is entered into in accordance with the law, it can be very difficult to set them aside. They can however, in certain circumstances, as set out in the Family Law Act, be set aside.

Parties to a Binding Financial Agreement are required by law to make full  and proper disclosure of all of their assets and financial resources prior to entering into the agreement.  They also need to disclose all their liabilities. This is known as full and proper disclosure and is required under the Family Law Act. Without full and proper disclosure to each other, agreement such as BFAs can be set aside by the court.

The agreement is required to be properly explained to each party by an independent lawyer. In fact for an agreement to be binding, it is required to have both a statement in the body of an agreement confiming that the parties have each received independent legal advice as well as a certificate attatched to it from each solicitor who has given the advice. The contents of he certificate are dicted by the Family Law Act, and Antwan Laywrs have interpreted these lots of times and are confident in doing so.

In order for the agreement to be bining, it must also be fair and reasonable.  If it is not the court can set the agreement aside. 

If required, the courts has the power to enforce a binding financial agreement. 

In short, a Binding Financial Agreement must meet a number of legal requirements in order for it to be upheld. A financial agreement is only binding on the parties if:

• It is signed by both parties;
• It includes a statement to the effect that each party to whom the agreement relates has received independent legal advice, as to the following matters:
• the effect of the agreement on the rights of that party;
• the advantages and disadvantages, at the time the advice was provided, to the party making the agreement.
• An annexure to the agreement being a certificate signed by the legal practitioner providing the independent legal adviceconfirming that the advice was provided;
• The agreement has not been terminated and has not been set aside by a court;
• After the agreement is signed, the original agreement is retained by one of the parties and a copy is given to the other

The certification required by the Act is often one lawyers refuse to provide because both expertise and understanding of the relevant law is required by the lawyer to satisfy his/her duty under the Act. At Antwan Lawyers, such expertise in Binding Financial Agreements is readily available from all of our senior Family Law practitioner.

Please contact us today to discuss obtaining or examining a Binding Financial Agreement.

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