Financial Agreements are the other binding alternative to Court Orders as a means of finalising a property settlement. Due to changes in the legislation a binding financial agreement can be entered into by married couples, de facto couples, and couples in same sex de facto or married relationships.
A financial agreement can be entered into before living together or before marriage in what is usually called a “pre-nuptial agreement”, during a de facto relationship or marriage, and after separation or after divorce.
For a financial agreement to be ‘binding’ under the family law act there are a number of specific criteria to be met. While a number of these matter relate to the form of the agreement and what it must contain, for the agreement to be binding both parties must have obtained independent legal advice as to the ‘advantages and disadvantages’ of the proposed distribution of property, and specific advice as to the effect of a binding agreement on your rights under the Family Law Act.
A Binding Financial Agreement is in effect a contract whereby the parties to a relationship seek to self-determine, rather than using the principles of the Family Law Act to determine, the manner in which their property is divided upon separation or divorce. It has been highly publicised that there are a number of basis on which these agreement can be set aside which is why obtaining advice from a specialised family lawyer is critical to ensure that you are able to make a properly informed decision as to the best way in which to proceed.
In the alternative you may have signed a Binding Financial Agreement in circumstances that may include non-disclosure, fraud, undue influence, or circumstances may have changed to the extent that the agreement can no longer be implemented in the manner in which it was drafted. If you require assistance or advise in relation to the setting aside of a Binding Financial Agreement, we have the experience necessary to properly advise you so as to ensure you receive the best possible outcome.