Binding Financial Agreements and Prenuptial Agreements

Binding Financial Agreements And Prenuptial Agreements

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What are Binding Financial Agreements?

Binding Financial Agreements are agreements between the parties to the relationship whereby the parties set out agreed terms about property matters. Binding Financial Agreement can sometimes include third parties. Binding Financial Agreements will determine the distribution of the property of the marriage / relationship between the parties, these include property, assets, superannuation, spousal and child maintenance and any other known assets of the marriage / relationship. Binding Financial Agreements are required to be drafted with precision in accordance with the Family Law Act, failing which there is a risk that the agreement may be void and will result in the parties ending up in court.

Binding Financial Agreements will address any future potential claims the parties can make against each other’s Estate following death or to potential inheritances.

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Entering into a Binding Financial Agreement

Binding Financial Agreements can be entered into at any of the following stages:

How is a Binding Financial Agreement deemed to be binding?

The agreement is signed by all parties; and
Before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and the advantages and disadvantages, at the time that the advice was provided, to that party of agreeing; and
Either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (2) was provided to that party (whether or not the statement is annexed to the agreement); and

Setting Aside a Binding Financial Agreement

Binding Financial Agreements can also be set aside under section 90K or 90UM of the Family Act. The reason for a Binding Financial Agreement to be set aside can include:

Fraud occurred, by parties not correctly disclosing all assets or liabilities at the time the Binding Financial Agreement was made.
To fraud or defeat a creditor.
A party is experiencing hardship due to the agreement.
The agreement is found to be void or unenforceable due to a mistake or misconduct.
The agreement is found to be irrelevant due to a change in circumstances

Binding Financial Agreements can also be terminated if the parties mutually agree to this, and a formal Termination Agreement but be entered into by the parties and obtain their own independent legal advice.

Are Prenuptial Agreements Worth It?

Prenuptial Agreements are entered into by two parties before marriage, and set the ground for what happens to the assets and liabilities of the parties should the relationship/marriage end in divorce, and include financial matters relating to assets including superannuation, property, business, finances, owned by either party before and acquired during the relationship/marriage.

Although this process can seem like an awkward and perhaps uncomfortable conversation for two people to have before marriage, prenuptial agreements are there for the benefit of both parties if the marriage ends in divorce as the prenuptial agreement can eliminate the need for a lengthy and costly litigation after separation.

Prenuptial Agreements have advantages such as

1.

Protects the financial
positions of the parties

2.

Protect the inheritance rights of any childern or grandchildren that exist from previous marriages or relationships

3.

Sets clear intentions and expectations

Something we advise our clients to consider before entering into a prenuptial agreement is that financial contributions may not be recognised based on what is stated in the agreement.

It is important to seek advice from an experienced family lawyer to obtain detailed information.

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