About Binding Financial Agreements
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- Our Process
- Helpful Information
FreePhone case assessment
Let’s talk about your family confidentially. We will need to have a chat over the phone about your circumstances, understanding everything you have done so far to resolve your legal issue and determine if our family lawyers can help your situation.
Book appointment with our family lawyers
If it's clear consulting a solicitor you will help your situation, we can identify the right one for your case and arrange a convenient appointment for you. We will review any documents you send us, and brief the solicitor before you arrive to maximise your time with them.
In depth consultation
At your meeting the solicitor will be able to provide sound legal advice indicate the outcome they expect to achieve and the legal pathway they would take with you to ensure the best possible result based off past cases and experience.
Sound legal advice & pathway forward
Armed with sound legal advice and a fixed fee quote for representation throughout the process you can then decide if you would like them to act on your behalf moving forward.
Get the right advice on your agreement
Find out if a BFA is right for your circumstances today, we can also provide advice on agreements drafted by other firms.
Lawyers with years of experience in financial agreements
Meet with solicitors that have an excellent understanding of all areas of financial agreements.
- Past Cases
- Good Results
- Happy Clients
What is a binding financial agreement?
A financial agreement is a written agreement between two or more people that is compliant with the law. Financial agreements are similar to a “pre-nuptial agreement” but can be signed before, during or after a marriage/relationship.
A financial agreement outlines the parties' agreement as to their financial arrangements. Financial Agreements are intended to avoid the need for the parties to go to court in respect of property matters.
Financial agreements can cover:
- division of property, finances and debts after separation;
- superannuation;
- spousal maintenance; and
- other incidental issues.
For financial agreements to be legally binding, both parties must have signed the agreement and have received independent legal and financial advice before signing.
When you can enter an agreement
You can enter a financial agreement:
- In contemplation of a marriage;
- In contemplation of a de facto relationship;
- During a marriage;
- During a de facto relationship;
- After divorce; or
- After a breakdown of a de facto relationship.
A financial Agreement may also include the parties' agreement on other issues such as maintenance, claims on the other party's estate after death and adult child maintenance.:
Are they enforceable?
A financial agreement is not a court order. It is an agreement that is governed by statute and the equitable contractual principles which may be used to set aside the agreement have been incorporated into the Family Law legislative provisions.
A court is required to determine whether a financial agreement or a termination agreement is valid, enforceable according to contract law. A court may also grant contractual remedies. In regards to the question of enforceability where parties have not strictly complied with legislative requirements, the court may consider whether it was unjust or inequitable for the agreement not to be binding upon the parties.
Setting aside an agreement
A financial agreement can be set aside for the following reasons:-
- Fraud (including failure to disclose a material matter)
- If the financial agreement was intended to defraud or defeat a creditor or was entered into with reckless disregard of a creditor's interests
- Void or unenforceable (i.e due to mistake, misrepresentation, uncertainty, incompleteness, duress, undue influence, breach, waiver or estoppel)
- If the financial agreement becomes impracticable due to a change in circumstances
- If there is a material change in circumstances in relation to a child, and the financial agreement would otherwise cause hardship
- Unconscionable conduct when the financial agreement was entered
- No reasonable likelihood that a flag in relation to superannuation will be terminated
- The financial agreement contains a superannuation interest that cannot be split
- When is it found the agreement was made to protect the interests of parties in other relationships with a party signing the financial agreement
Terminating an agreement
A financial agreement can be terminated by the parties either by:
- Signing a new financial agreement which includes a provision terminating the old agreement; or
- Signing a written document specifically terminating the agreement
The legislation does not specifically recognise automatic termination if a certain event occurs or does not occur. If the parties seek that their agreement be terminated at a certain time, such as after the birth of a new child, remarriage, sickness or unemployment or affair, the agreement should be drafted in divided parts. Additional clauses should also be included to apply if a certain event does or does not occur.
Independent legal advice
A financial agreement is not registered with a court. It is intended to be a binding and enforceable agreement between the parties only.
Given that the court does not review and confirm a financial agreement before it is entered into by the parties, there are stringent requirements about parties receiving independent legal advice before they sign a financial agreement. The Family Law Act 1975 (Cth) has set down certain requirements about how a financial agreement should be created and recorded.
Get the right advice on your agreement
Find out if a BFA is right for your circumstances today, we can also provide advice on agreements drafted by other firms.
Lawyers with years of experience in financial agreements
Meet with solicitors that have an excellent understanding of all areas of financial agreements.
- Past Cases
- Good Results
- Happy Clients
Our Process
FreePhone case assessment
Let’s talk about your family confidentially. We will need to have a chat over the phone about your circumstances, understanding everything you have done so far to resolve your legal issue and determine if our family lawyers can help your situation.
Book appointment with our family lawyers
If it's clear consulting a solicitor you will help your situation, we can identify the right one for your case and arrange a convenient appointment for you. We will review any documents you send us, and brief the solicitor before you arrive to maximise your time with them.
In depth consultation
At your meeting the solicitor will be able to provide sound legal advice indicate the outcome they expect to achieve and the legal pathway they would take with you to ensure the best possible result based off past cases and experience.
Sound legal advice & pathway forward
Armed with sound legal advice and a fixed fee quote for representation throughout the process you can then decide if you would like them to act on your behalf moving forward.
Get the right advice on your agreement
Find out if a BFA is right for your circumstances today, we can also provide advice on agreements drafted by other firms.
Lawyers with years of experience in financial agreements
Meet with solicitors that have an excellent understanding of all areas of financial agreements.
- Past Cases
- Good Results
- Happy Clients
Helpful Information
What is a binding financial agreement?
A financial agreement is a written agreement between two or more people that is compliant with the law. Financial agreements are similar to a “pre-nuptial agreement” but can be signed before, during or after a marriage/relationship.
A financial agreement outlines the parties' agreement as to their financial arrangements. Financial Agreements are intended to avoid the need for the parties to go to court in respect of property matters.
Financial agreements can cover:
- division of property, finances and debts after separation;
- superannuation;
- spousal maintenance; and
- other incidental issues.
For financial agreements to be legally binding, both parties must have signed the agreement and have received independent legal and financial advice before signing.
When you can enter an agreement
You should contact the child's other parent and ask them to give written consent for a passport to be issued for your child and sign the passport application. You should let them know the reason why you want your child to have a passport. If you are intending to travel overseas you should clearly set out the proposed dates of travel.
The Family Court requires that you make a genuine attempt to reach an agreement before asking the Court to make orders. Making an agreement outside of Court also saves you money, time and the emotional stress of a Court case. There are exceptions to this, for example, where there has been or is a risk of family violence or child abuse or where something is very urgent.
Are they enforceable?
A financial agreement is not a court order. It is an agreement that is governed by statute and the equitable contractual principles which may be used to set aside the agreement have been incorporated into the Family Law legislative provisions.
A court is required to determine whether a financial agreement or a termination agreement is valid, enforceable according to contract law. A court may also grant contractual remedies. In regards to the question of enforceability where parties have not strictly complied with legislative requirements, the court may consider whether it was unjust or inequitable for the agreement not to be binding upon the parties.
Setting aside an agreement
A financial agreement can be set aside for the following reasons:-
- Fraud (including failure to disclose a material matter)
- If the financial agreement was intended to defraud or defeat a creditor or was entered into with reckless disregard of a creditor's interests
- Void or unenforceable (i.e due to mistake, misrepresentation, uncertainty, incompleteness, duress, undue influence, breach, waiver or estoppel)
- If the financial agreement becomes impracticable due to a change in circumstances
- If there is a material change in circumstances in relation to a child, and the financial agreement would otherwise cause hardship
- Unconscionable conduct when the financial agreement was entered
- No reasonable likelihood that a flag in relation to superannuation will be terminated
- The financial agreement contains a superannuation interest that cannot be split
- When is it found the agreement was made to protect the interests of parties in other relationships with a party signing the financial agreement
Terminating an agreement
A financial agreement can be terminated by the parties either by:
- Signing a new financial agreement which includes a provision terminating the old agreement; or
- Signing a written document specifically terminating the agreement
The legislation does not specifically recognise automatic termination if a certain event occurs or does not occur. If the parties seek that their agreement be terminated at a certain time, such as after the birth of a new child, remarriage, sickness or unemployment or affair, the agreement should be drafted in divided parts. Additional clauses should also be included to apply if a certain event does or does not occur.
Independent legal advice
A financial agreement is not registered with a court. It is intended to be a binding and enforceable agreement between the parties only.
Given that the court does not review and confirm a financial agreement before it is entered into by the parties, there are stringent requirements about parties receiving independent legal advice before they sign a financial agreement. The Family Law Act 1975 (Cth) has set down certain requirements about how a financial agreement should be created and recorded.
Get the right advice on your agreement
Find out if a BFA is right for your circumstances today, we can also provide advice on agreements drafted by other firms.
Lawyers with years of experience in financial agreements
Meet with solicitors that have an excellent understanding of all areas of financial agreements.
- Past Cases
- Good Results
- Happy Clients
