If you are planning to marry or enter into a de facto relationship, you may wish to protect your existing assets, as well as assets acquired during the marriage or relationship, by entering into a financial agreement. These agreements are often referred to as a “pre-nup” or “binding financial agreement” (BFA).
What is a Financial Agreement?
In the Australian family law system, a Financial Agreement is a contract between two or more parties made under the Family Law Act 1975. Financial Agreements may be made under Part VIIIA for married couples, or under Division 4 of Part VIIIAB for couples in de facto relationships.
A Financial Agreement can set out how property, financial resources and other assets are to be dealt with if the relationship ends.
Legal requirements
The law relating to Financial Agreements is complex. For an agreement to be binding, it must satisfy strict technical requirements under the Family Law Act 1975, including the requirements set out in:
- section 90G, for Financial Agreements concerning marriages; and
- section 90UJ, for Financial Agreements concerning de facto relationships.
Each party must obtain independent legal advice before entering into a Financial Agreement.
Effect and limitations
When properly prepared and entered into, a valid Financial Agreement may allow parties to “contract out” of court proceedings about certain financial matters. However, the Court retains the power to set aside a Financial Agreement in certain circumstances, including but not limited to where there has been fraud, where implementation is impracticable, or where a material change in circumstances has occurred.
If you or someone you know wants more information, or if you intend to be or are a party to a Financial Agreement, or a purported Financial Agreement, which may come into effect, you should seek please contact Gerard Kell & Co on 0412 4242 38 or email us at [email protected]
Disclaimer: The information on this page is provided for general information purposes only and does not constitute legal advice. For advice specific to your circumstances, please contact us directly or obtain independent legal advice from another qualified legal professional.
