|Type of BFA
|Fixed Fee + GST
|Prenup – Before Marriage
|Prenup – Before De Facto
|During De Facto
|After De Facto
|During De Facto & You Might Get Married
|s 90UC & s 90B
|Statement of Independent Legal Advice
(other side has drafted the BFA)
|s 90G & s 90UJ
Please note that in some circumstances (e.g. large asset pool, overseas assets, complex situation) a fixed fee would need to be negotiated after discussion with you.
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A Financial Agreement (also known as a Binding Financial Agreement or BFA) is a legally binding contract made under Part VIIIA (marriage) or Part VIIIAB (de facto) of the Family Law Act 1975.
A Financial Agreement can be used as a prenup to protect assets and provide for how in the event of separation the relationship asset pool is to be divided. Another way that a Financial Agreement is often used is as a separation agreement to divide the asset pool and split super after separation.
You cannot sign a Financial Agreement without first getting legal advice from an Australian solicitor, who having provided that advice, needs to sign a Statement of Independent Legal Advice, often referred to as a Solicitor’s Certificate. This must be done before you sign the agreement.
A properly drafted Financial Agreement, will oust the court’s jurisdiction in relation to financial proceedings between the parties generally, or in relation to specific issues. In other words, a Financial Agreement, if prepared and entered into properly, can be a way to “contract out” of court proceedings.
A Financial Agreement can can address all aspects of the financial relationship. A Financial Agreement can also deal with only some issues, such as spousal or de facto maintenance.Therefore a Financial Agreement is often used as a release from any future spousal maintenance liability.
When can I enter into a Financial Agreement?
You can enter into a Financial Agreement before marriage (section 90B), during marriage (section 90C), or after marriage (section 90D).
You can enter into a Financial Agreement before de facto relationship (section 90UB), during de facto relationship (section 90UC), or after de facto relationship (section 90UD).
In all cases it is mandatory to get independent legal advice and a signed Statement of Independent Legal Advice, often referred to as a Solicitor’s Certificate, before entering into a Financial Agreement.
Is my Financial Agreement binding?
To be binding, a Financial Agreement must meet certain technical requirements, which are set out in sections 90G (for Financial Agreements about marriages) and 90UJ (for Financial Agreements about de facto relationships) of the Family Law Act 1975.
Can a court set aside my Financial Agreement?
Yes, there are powers which allow a court to set aside Financial Agreements in some circumstances, which are set out in sections 90K (for Financial Agreements about marriages), and 90UM (for Financial Agreements about de facto relationships) of the Family Law Act 1975. If you are a party to a Financial Agreement (or a purported Financial Agreement) which you think could be set aside, you should seek legal advice.
Most of the cases in which a court has set aside a financial agreement pursuant to section 90G or section 90UJ are as a result of simple errors on the part of the solicitor drafting the agreement or providing advice in relation to the agreement.
Do we both need independent legal advice?
Yes. Each party to a Financial Agreement must be provided with independent legal advice about prescribed matters by an Australian solicitor before entering into the Financial Agreement. There are specific requirements for the advice to be given and as such the advice should be provided to you in a formal letter. Having given the advice, the solicitor needs to provide you with a signed Statement of Independent Legal Advice, often referred to as a Solicitor’s Certificate. Only once these formalities have been completed you may sign your Financial Agreement.