Individuals that are planning on marriage or are already married can enter into a Binding Financial Agreement (“BFA”):
- before marriage (a Prenuptial Agreement)
- after marriage
- after Divorce
BFAs exclude the jurisdiction of the Family Court of Australia. They are contracts that set out the division of property and your superannuation interests. They can also provide for spousal maintenance.
It is essential that at whatever stage you wish to make a BFA that you make full and frank disclosure of your assets and liabilities to avoid a subsequent challenge to the BFA on the grounds of non-disclosure.
Prenuptial Agreements are commonly entered into if there is an imbalance of each party’s assets. A party may wish to protect those assets in the event of a marriage breakdown.
As you are contracting out of the provisions of the Family Law Act 1975 when entering into a BFA, our divorce lawyers in St. Kilda, have to take special care that you are well-advised as to how the BFA varies what would otherwise be your statutory rights.
A BFA entered into after the parties have separated can be a quick alternative to obtaining Consent Orders in the Family Court of Australia. However, Consent Orders have the added advantage that they can not be made without the Court first determining that the Orders are “just and equitable”. No such protection exists when you enter into a BFA.
It is a requirement of the Family Law Act 1975 that each party to the BFA have independent legal advice and that a legal practitioner provide a Certificate confirming that you have received that advice independently and has had explained the advantages and disadvantages of the BFA to them.