Binding Financial Agreements (BFAs) also known as Prenuptial Agreements
The Family Law Act gives people the opportunity to enter into agreements formally between them which allocates what happens to their assets, liabilities and superannuation entitlements in the event that they separate.
The O’Neill Family Law team often methodically prepare agreements to deal with situations where parties:-
- are married;
- are contemplating marriage;
- are divorced;
- are contemplating entering into a defacto relationship;
- are in a de facto relationship; or
- have separated.
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We understand the complexities and uncertainties that can arise in relationships.
Our experienced family law team is dedicated to providing comprehensive legal guidance and support in creating Binding Financial Agreements tailored to safeguard your assets and future interests.
What are Financial Agreements?
A Binding Financial Agreement or Prenuptial Agreement are legally binding documents between partners or spouses regarding the division of assets, liabilities and spousal maintenance in the event of a relationship breakdown.
Therefore, both married and de facto couples, including same-sex couples, can enter into a Binding Financial Agreement.
BFAs serve a crucial role in protecting financial resources and providing control to both parties. They empower individuals to define terms for asset division without resorting to Court proceedings and can address all aspects of a financial relationship.
Without a BFA, the resolution of financial matters can be uncertain and may lead to prolonged legal proceedings.
When can a BFA be established?
A BFA can be entered into before, during or after a relationship. If made after a relationship breakdown, it is important for the BFA to be made within 12 months of a Divorce taking effect.
In Australia, without a Binding Financial Agreement in place, either party can apply to the Family Court of Australia for property settlement or spousal maintenance and so long as the limitation period has not passed, the Application should be relatively straightforward.
What can the Financial Agreement cover?
A Binding Financial Agreement can cover a wide range of financial matters between parties including:
- Property division (family trust, insurance policies, shares etc.)
- superannuation, and
- provisions for spouse maintenance.
The primary purpose of a BFA is to limit, exclude, or prevent one party from making a claim against the other in Courts regarding financial matters.
When should you consider entering an agreement?
BFA’s are beneficial for anyone seeking clarity in asset division and financial security, irrespective of their wealth.
Additionally, entering into a BFA does not indicate a lack of trust but rather demonstrates a proactive approach towards financial planning and provides parties with a clear division of financial rights and responsibilities which is important for the future.
Do you need a Lawyer to prepare the agreement?
The Family Law Act sets out strict requirements for a BFA to be legally binding and requires the involvement of experienced and independent family law lawyers.
Each party must obtain independent advice from a legal practitioner regarding the implications and effects of the Agreement on their rights and enter the Agreement of their own free will.
Both parties’ legal advisors will complete a certificate of advice, forming part of the Agreement.
For any concerns or queries regarding Financial Agreements or any other family law matter, please contact us today on (07) 4690 1700 or through our online form for professional and tailored legal advice.