Shan Lawyers is here to assist you with all your binding financial agreements and also to make the process as efficient and smooth as possible to minimise and reduce any confusion or stress that can often arise from such situations when not done well. That is why you need an expert lawyer who is competent in such matters. Shan Lawyers have both the experience and expertise to help you with a binding financial agreement.
A Binding Financial Agreement (BFA) is a legally enforceable agreement between parties, commonly used in family law circumstances. It details the distribution of assets and financial resources in the event of a relationship breakdown, such as separation or divorce. BFAs can address various financial matters, including property division, spousal or de facto maintenance, and superannuation.
What is a Financial Agreement?
A Financial Agreement is a contract between two or more parties made under the provision of the Family Law Act. Commonly, the agreement is to be entered between the married couple or de facto partners, including same sex partners. The Financial Agreement, if prepared and entered into properly, can be a way to ‘contract out’ of court proceedings.
2. When Financial Agreements are Binding?
For a Financial Agreement to be legally binding, it must fulfill specific technical requirements. These include the following:
(a) The Agreement must be in writing and signed by both parties.
(b) Before signing the agreement, each party must have received independent legal advice as to its effects on their rights and the advantages and disadvantages of the terms of the agreement.
(c) Each party must receive a Statement of Legal Advice from their lawyer.
(d) A copy of the lawyer’s Statement is given to each party or their lawyer.
(e) The Agreement has not been terminated and has not been set aside by the court.
The Financial Agreements are very complex. If you want to enter into a Financial Agreement, contact Shan Lawyers.
3. When Can You Enter into a Financial Agreement?
The agreement can be created at various stages of a relationship, and different provisions address each stage. For instance:
– If the agreement is made before marriage (also referred to as a “pre-nup”), it should be prepared under section 90B of the Family Law Act.
– If the agreement is made during the marriage or after separation, it should be prepared under section 90C of the Family Law Act.
– If the agreement is made after divorce, it should be prepared under section 90D of the Family Law Act.
Note – You can also create a superannuation agreement separately or include it with the above agreements.
4. When Can You Enter into a Financial Agreement?
Some of the grounds for setting aside a Financial Agreement are as follows:
(a) the agreement was obtained by fraud, including non-disclosure of a material matter. For instance, if one spouse intentionally withholds full and honest financial disclosure with the aim of dissipating assets from the asset pool in order to prevent the other spouse from receiving their proper entitlement.
(b) Entering into the agreement for the purpose of defrauding or defeating a creditor or reckless disregard to the interest of a creditor.
(c) Defrauding or defeating another person.
(d) The agreement is void, voidable or unenforceable.
(e) In the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out.
(f) Since the making of the agreement, a material change in circumstances has occurred.
If you would like more information about financial agreements or need assistance in drafting one, please feel free to contact us or schedule an appointment with our family lawyer Thirumalai (Shelvi).