What is a Binding Financial Agreement?
A Binding Financial Agreement is an agreement about property, superannuation and/or maintenance, made in contemplation of separation.
A Binding Financial Agreement can be made at various times throughout a relationship.
Individuals may seek to enter into a Binding Financial Agreement at the beginning or part way through a relationship. Quite often, parties will enter into an agreement in anticipation of marriage. Such agreements are commonly referred to as pre-nuptial agreements.
Parties may also choose to enter into Binding Financial Agreements post-separation or divorce. These agreements are referred to as post-nuptial agreements.
Binding Financial Agreements are simply a contractual agreement between parties.
A Binding Financial Agreement is an alternative to Consent Orders. Consent Orders are court orders made by consent between the parties.
Binding Financial Agreements can be more effective than Consent Orders at preserving the wealth of one or both parties.
They can also be used to protect particular assets, such as a business or inheritance, some of which may have been acquired by a party before the relationship, or which a party may expect to receive at some time in the future.
How do I make a Binding Financial Agreement?
For a financial agreement to be legally binding, it must be signed by both parties and each of them must have received independent legal advice from a lawyer before signing on the effect of the agreement and its advantages and disadvantages to the party at the time.
In addition, the agreement should attach a certificate signed by the lawyers providing the independent legal advice stating that independent legal advice was provided to that party.
Can the Binding Financial Agreement be set aside?
Binding Financial Agreements can be overturned on the basis of unconscionable conduct, a failure to disclose relevant information, where the object of the agreement was to defeat third parties including creditors, where circumstances have arisen which make it impossible for the agreement to be carried out, where there has been a material change in circumstances relating to the care and welfare of a child and hardship will be suffered if the agreement is not set aside, where the effect of the agreement is to exclude or limit maintenance payments and the proposed recipient is unable to supports themselves, fraud, duress or a failure to comply with formal requirements.
Where should I start?
Do you have questions about Binding Financial Agreements? Contact our office in Bendigo on 5434 6666 or Castlemaine on 5472 1588 today for an appointment with our family lawyer, Caroline Granger.