The term “Binding Financial Agreement” refers to agreements made before, during and after marriage. A Binding Financial Agreement now replaces what was known as a prenuptial or cohabitation agreement.

Binding Financial Agreements were introduced in 2000. These agreements initially enabled married parties to deal with issues of property and spousal maintenance outside the Court’s jurisdiction. Cohabitation and Separation Agreements dealt with de facto relationships.

The Family Law Act 1975 has now been amended. A Binding Financial Agreement can now be entered:-

• Before marriage / de facto relationship
• During marriage / de facto relationship
• After marriage / de facto relationship

In Order to be binding, there are a number of requirements that must be met, including that each party must receive legal advice.

A Binding Financial Agreement can be set aside on a number of grounds including:-

• Fraud
•  If entered to defraud creditors
•  The agreement is unenforceable
•  Circumstances have arisen since the agreement was entered that make it impracticable
•  A party would suffer hardship if the agreement was not set aside
•  A party engaged in unconscionable conduct

A Binding Financial Agreement is binding on the estate of the deceased party.

A Binding Financial Agreement allows parties to “opt out” of the Court’s jurisdiction and privately determine the division of their assets and liabilities.

We can prepare a Binding Financial Agreement to assist in the protection of your assets.

We frequently work alongside client’s accountants and engage specialist estate and succession lawyers to ensure that you can have peace of mind.

 Practical Tips

• A Binding Financial Agreement entered at the commencement of a marriage or relationship where the parties are intending to start a family may not be the best option. There is a high probability that the agreement may be set aside if it does not provide support in the event of children. The agreement must be drafted to meet your specific needs.
• Binding Financial Agreements are most commonly used during or prior to marriage for older couples that want to protect their existing assets for children of prior relationships.
• Binding Financial Agreements are drafted to specifically meet the needs of each individual client. There is no “one fits all” agreement.