Becoming engaged can be a memorable and exciting experience. It is often the next big step in a relationship and comes with a busy schedule leading up to the all-important wedding day.
A key appointment to put in your calendar is with your family lawyer to discuss whether you should enter into a Binding Financial Agreement (“BFA”).
Often referred to as a “prenuptial agreement” or “prenup”, a BFA is a formal contract that sets out the way some or all of a couple’s assets will be divided in the event that their relationship breaks down. It can also deal with spousal maintenance.
In order for your BFA to be binding, it must meet certain technical requirements, which are set out in sections 90G (for marriages) and 90UJ (for de-facto relationships) of the Family Law Act.
One key requirement is for both you and your spouse to obtain independent legal advice before entering the BFA. If you fail to comply with this requirement, the Federal Circuit and Family Court of Australia (“Court”) has the power under section 90K (for marriages) and 90UM (for de facto relationships) of the Act to set aside the BFA.
Another key requirement for an effective BFA is to ensure you and your spouse provide full and frank disclosure. Where you and/or your spouse fail to provide the disclose documents which were of a material matter, the Court has the power to set aside the BFA.
Although a BFA can be signed at any point during a relationship (before, during or after cohabitation and marriage, and after divorce), it is preferable that the agreement is put in place before getting married or entering into a de facto relationship (i.e. living together).
If you need assistance to ensure that your BFA is enforceable or would like to consider putting in place a financial agreement before you marry or live with your spouse or partner, please contact our Family Law Team on (03) 8600 9333.
