11. Binding Financial Agreements

Q. What is a Binding Financial Agreement?

A. If you agree with your spouse on issues of property and/or spousal maintenance you may prefer to enter into a Binding Financial Agreement instead of Consent Orders. A Binding Financial Agreement can contain all of the property arrangements that you and your spouse have agreed to including matters about the division of property, superannuation and spousal maintenance. There are three types of Agreements that may be entered into under the Family Law Act 1975:

A Section 90B Agreement (commonly known as a “Pre-nuptial Agreement”) which is entered into between two people who are intending to marry;
A Section 90C Agreement, which is entered into between two people who are married and/or separated, but who are not yet divorced;
A Section 90D Agreement, which is entered into between two people who are divorced.

A Binding Financial Agreement is a financial agreement, and does not cover parenting arrangements.

Q. What does a Binding Financial Agreement involve?

A. Entering into a Binding Financial Agreement does not involve the Court at any stage. In order for a BFA to be legally binding, there are certain legal requirements that must be met, for example:

The Agreement must be in writing;
The Agreement must specify which section of the Family Law Act it is made under;
The Agreement must be signed by both parties;
Each party must have independent legal advice with respect to the Agreement and the advantages and disadvantages to the party entering into the Agreement. The solicitor must sign a Certificate to the Agreement which confirms that the advice has been provided.

Depending on your particular situation, it may be more appropriate for you to enter into a Binding Financial Agreement than to have the Court make Orders for you. Each method allows you to finalise your financial arrangements, but each method is different and has different benefits. Our solicitors can help advise which method is most appropriate for your individual needs.