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READ MOREMost people have heard of ‘pre-nups’ (prenuptial agreements) – we have them available in Australia, but in Australia pre-nups are called Financial Agreements. These Agreements are a form of contract recording an agreement between spouses about the distribution of their property following any separation. Financial Agreements can be entered into by couples who:
- Are intending to marry;
- Are intending to commence a de facto relationship;
- Are already married or living in a de facto relationship;
- Have separated from a marriage or de facto relationship;
- Have divorced.
By entering a Financial Agreement, parties give up their right to a property settlement pursuant to the Family Law Act 1975 after separation and instead bind themselves to their own deal about the division of their assets and liabilities which is recorded in the Agreement. It is therefore important to get the terms of a Financial Agreement just right for your unique situation, present and future, and to seek legal advice from an experienced prenuptial agreement lawyer or binding Financial Agreement lawyer about it before signing an Agreement.
Talk to a Prenuptial agreement lawyer at BGM Family Lawyers.
Other names for Financial Agreements
Financial Agreements are also known as binding Financial Agreements, because they are legally binding once entered into. Financial agreements are also commonly referred to as prenuptial agreements or prenups, due to their commonly being entered into before marriage (before nuptials).
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Binding Financial Agreement experts offering independent legal advice
At BGM Family Law, we know family law intricately because it’s all we do.
We’re a family law firm that focuses solely on family law, across Binding Financial Agreements, divorce and separation, financial matters relating to the breakdown of a marriage or de facto relationship, spousal maintenance, financial support, de facto relationships and child support and custody matters, and other matters relating to the Family Law Act, Family Court and family law in Australia.
If you are entering into a new relationship, marriage, or in an existing relationship and would like to put into place the support and security that a prenuptial agreement gives you, our expert and experienced team of binding Financial Agreement lawyers are here to help.
Talk to a binding Financial Agreement lawyer at BGM Family Lawyers.
The advantages of binding Financial Agreements
There are a number of advantages to putting a binding Financial Agreement in place. Importantly, because the Agreement specifies what is to occur in the event of marriage or relationship breakdown, there is certainty in regard to the division of assets.
This division can be carried into effect without having to go to court. Financial Agreements are often considered by couples if one party has significantly more assets than the other (such as inherited property, or a family business which has been passed down to them); where one party has significant debts from which they seek to insulate their partner; where a spouse is a key person in a significant business, and the other stakeholders in that business seek to avoid it becoming embroiled in a personal dispute after relationship breakdown; or where one party has financial responsibility for others, and their capacity to meet the obligation needs to be preserved.
Financial Agreements are often attractive for couples who have been involved in family law-related disputes in connection with prior relationships and wish to avoid that experience in the future by pre-empting what will occur if relationship breakdown becomes a reality. A Financial Agreement is a very technical document, of a class that can only be completed with a solicitor involved. That is because there are strict legal requirements, compliance with which is necessary for a Financial Agreement to be legally binding, including that:
- The Agreement must be signed by all parties; and
- Before signing the Agreement each party must be provided with independent legal advice in relation to the effect of the Agreement on their rights and the advantages and disadvantages, at the time the advice was provided, to that party of making the Agreement; and
- A Statement by the respective parties’ legal practitioners must be signed confirming that the required advice was given, and a copy of the Statements must be provided to the parties.
Talk to a binding Financial Agreement lawyer at BGM Family Lawyers.
Specialist family law firm on the Gold Coast
Get the help of an experienced binding Financial Agreement lawyer on our team
As experienced family lawyers on the Gold Coast, we can provide you with advice at any stage of your Financial Agreement. Whether you are contemplating having a prenuptial agreement prepared, your spouse has given you one to consider, or you already have a binding Financial Agreement, have separated, and now need to have it interpreted and implemented; our experienced team are here to help.
With over 45 years of legal practice under our belt between our three directors at BGM Family Lawyers, we offer both extensive knowledge and experience in prenuptial agreements and other Family Law matters.
Our experienced solicitors can provide legal advice on all Financial Agreement related issues (this can include the tax consequences of the property and other transactions referred to in a Financial Agreement). Contact BGM to arrange an appointment with one of our accredited family law specialists to discuss your prenuptial agreement.
FINANCIAL AGREEMENTS (PRENUPTIAL AGREEMENTS) FAQ
As a leading binding Financial Agreement law firm in the Gold Coast, we commonly get asked a range of questions about binding Financial Agreements and the Family Law Act. Here are some of our most frequently asked questions about prenuptial agreements.
It is possible to have a Financial Agreement (Prenuptial Agreement) in which you can ‘quarantine' all of your wealth, but without having to disclose that wealth?
For a spouse to be held to a Financial Agreement after separation, it will need to be clear that they were able to make a fully-informed decision about that Agreement. For them to have this understanding, it will need to be clear that they were put in a position where they were possessed of information about the subject of the Agreement.
If the effect of the Agreement is to see Spouse A retain their pre-relationship wealth intact, then the nature, extent and value of that wealth are likely to be found to need to have been revealed to Spouse B at the time of the entry of the Agreement, such that Spouse B was aware of that to which they were committing.
For a Financial Agreement not to be accompanied by full and frank disclosure is to give rise to the potential that it will be set aside, and found not to bind Spouse B.
Can a Financial Agreement protect assets acquired after the agreement is signed?
It depends on the terms of the agreement. Parties can stipulate how future assets, such as those acquired during the marriage or relationship, will be treated. It's crucial to consider potential future scenarios when drafting the agreement.
How does entering into a Financial Agreement affect my rights under the Family Law Act 1975?
By entering into a Financial Agreement, parties essentially opt out of the property settlement provisions under the Family Law Act 1975. This means they agree to divide their property according to the terms of the agreement rather than through the court's discretion under the Australian Family Law Act.
Can Financial Agreements be modified or terminated after they are signed?
Yes, Financial Agreements can be changed or ended, but this must be done with the consent of both parties. Any modifications or terminations also need to be in writing and meet the same legal requirements as the original agreement.
How does a Financial Agreement impact spousal maintenance obligations?
A Financial Agreement can include terms about spousal maintenance, either waiving it or stipulating certain conditions and amounts. However, the court retains the power to override these terms if it finds that the agreement does not adequately provide for the maintenance of a party who, at the time of entry of the Agreement, could not support themself without an income-tested pension, allowance or benefit.
What kind of assets and liabilities can be included in a Financial Agreement?
Financial Agreements can cover a wide range of assets and liabilities, including property, inheritances, investments, debts, and even future earnings or potential inheritances. It's important to provide a comprehensive and honest disclosure of all relevant financial matters when talking to a lawyer about your prenuptial agreement, so that they can be covered in the Agreement.
Are there any circumstances where a Financial Agreement might be challenged or set aside?
Yes, Financial Agreements can be challenged and potentially set aside by a court under certain conditions, such as if there was fraud, failure to disclose significant financial matters, the agreement is deemed impractical, or if circumstances have significantly changed (especially concerning the care of children).
How does a Financial Agreement differ from a court-ordered property settlement?
A Financial Agreement is a private contract between parties that outlines how assets and liabilities will be divided in the event of a relationship breakdown, without the need for court intervention. A Financial Agreement or prenuptial agreement is usually created before the marriage or de facto relationship breaks down. In contrast, a court-ordered property settlement is a judicial decision made when parties cannot agree on the division of assets.
What are the key legal requirements for a Financial Agreement to be binding in Australia?
Financial Agreements in Australia must meet certain legal criteria to be considered binding and endroced. This includes being in writing, signed by both parties, and both parties receiving independent legal advice about the agreement's implications. A statement from the lawyers confirming that advice was given must also be included.
How important is seeking independent legal advice when entering a Financial Agreement in Australia?
Independent legal advice ensures that both parties fully understand the agreement's implications, their rights, and any potential advantages and disadvantages. This is a legal requirement and is crucial for the agreement's enforceability.
Still have questions about your binding Financial Agreement matter?
If you still have questions or your question is not addressed in the above Australian prenuptial agreement FAQs, please don’t hesitate to schedule a consultation with our team. It’s always best to seek legal advice for any legal matter, and Financial Agreements are no different. We’re a binding Financial Agreement law firm that is here for you.
Talk to a prenuptial agreement lawyer at BGM Family Lawyers
Get expert legal advice on your Financial Agreement with BGM Family Lawyers
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