Family Law -Binding Financial Agreement
After two people marry, either spouse may apply to the Family Court of Australia
for orders which alter their respective or joint property interests. The Family
Court may order the transfer of property or money from one spouse to the other
in accordance with the laws and principles of the Family Law Act.
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However, if both parties to the marriage agree, they can enter an Agreement,
commonly known as Binding Financial Agreement (“B.F.A.”) which says, in
effect: the two of us agree to do certain things with our property, and we
don’t want the Family Court to order otherwise (even though one of us
might later change our mind). In legal terminology, a BFA attempts to "oust the
jurisdiction of the Family Court", although the Family Court nevertheless retains
some power to interfere in the property relations of the parties, in limited circumstances.
The Family Law Act enables parties to a marriage to make a BFA before a
marriage (see section 90B of the Act), or during a marriage (see section 90C
of the Act), or after a divorce order (see section 90D of the Act).
Sometimes the agreement under s.90B is called a “Prenuptial Agreement”
and the agreement under s.90D is called the “Postnuptial Agreement”.
However, the Family Law Act doesn’t employ that terminology.
Accordiing to s.90G of the Family Law Act, each party must receive an original signed agreement, one marked "original" and one marked "copy" OR one party must receive an originally signed document and the other party must receive an identical photocopy of that signed agreement. Both copies must be identical. Unless one party receives an "original" and the other party receives a "copy", the agreement does not comply with s.90G.
We provide a sample of a BFA before marriage, and a sample
of a BFA after a divorce.
To be effective, a BFA should include two certificates signed by a lawyer, one for each party, saying the lawyer gave certain advice about the BFA. Therefore it is likely that any couple wanting to enter a BFA will seek some input from a lawyer rather than write the whole agreement by themselves. However, we at docDownload hope that the samples we provide may enable couples to do as much of the writing as they can by themselves, before going to the lawyers, which might reduce the amount they spend on lawyers. DocDownload says this only as a general observation and does not purport to give legal advice to any customers.
Some background reading before downloading:
Important notes to be read before downloading pre nuptial and post nuptial agreement templates
Understanding solicitor's explanation and comments
Click on Heading to read a more detailed description: