Talk to a family lawyer experienced in preparing financial agreements

Binding financial agreements (sometimes referred to as pre-nuptial or separation agreements) have been part of the family law landscape since 27 December 2000. Such agreements can be entered into by parties before, during or after marriage and de facto relationships.

Binding financial agreements are binding and enforceable in Australia, despite the common misconception they are “not worth the paper they are written on”. Indeed, such agreements are the only effective way of protecting assets from a spouse in the event of separation.

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Contact us on 07 5554 1555 to talk to an expert in binding financial agreements. We will discuss your situation and assist to prepare a document that meets strict legal requirements.

In order for a binding financial agreement to be recognises as binding and enforceable in Australia, the Agreement must meet certain criteria set out in the legislation including:

  • The Agreements must be signed by both parties;
  • The Agreement must contain, in relation to each party, a statement to the effect that the party to whom the statement relates has been provided with independent legal advice before the agreement was prior to the parties entering the agreement.  The advice must cover the following matters:
  • The effect of the Agreement on the rights of both parties;
  • Whether or not at that time when the advice was provided it was to the advantage financially or otherwise of that party to make the Agreement.
  • The agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided;
  • The Agreement has not been set aside by a Court; and
  • After the Agreement is signed the original Agreement is given to one of the parties and a copy is given to the other.

If the Agreement satisfies all of the above criteria, then it is known as a Binding Financial Agreement.

Financial agreements may deal with:

  • All or any of the property or financial resources owned by either party;
  • The maintenance to be paid by one spouse to the other after the marriage or de facto relationship has ended;
  • Other matters incidental to your financial affairs;
  • The splitting of superannuation entitlements; and
  • Contracting out of spousal maintenance.

A Court may make an Order setting aside a Binding Financial Agreement if, and only if, the Court is satisfied that:

  • The Agreement was obtained by fraud (including non-disclosure of a material matter);
  • The Agreement is void, voidable or unenforceable;
  • If circumstances have arisen since the Agreement was made to make it impractical for the Agreement or part of the Agreement to be carried out;
  • Since the making of the Agreement a material change in circumstance has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and as a result of the change, a party to the Agreement will suffer hardship if the Court does not set the Agreement aside; or
  • In respect of the making of a Binding Financial Agreement, a party to the Agreement engaged in conduct that was in all the circumstances unconscionable.

Please note that one can terminate an Agreement at any time by entering into a formal termination agreement.  A termination agreement must comply with the same formalities as a Binding Financial Agreement.