Binding Financial Agreements (BFAs)

Expert legal advice on Binding Financial Agreements from Brisbane family lawyers

Key Points

A Binding Financial Agreement is an agreement that deals with the financial aspects of your marriage or defacto relationship. The main circumstances that people enter into Binding Financial Agreements are:

  • as a prenuptial agreement (before separation);
  • to finalise their property settlement/spouse maintenance (after separation); or
  • to prevent future claims for spouse maintenance (after separation).

The agreement takes the form of a Deed. It is not lodged or approved by the Court and does not require the Court’s approval to be binding and enforceable.

FAQs

In relation to pre-nuptial agreements, people enter into Binding Financial Agreements in order to:

  • protect family wealth;
  • protect family businesses;
  • protect wealth that one or both parties bring to the relationship/marriage;
  • to avoid conflict in the event of a relationship breakdown;
  • to set boundaries and formalise how they intend to operate their finances through the marriage.

In relation to property settlements, people enter into Binding Financial Agreements because:

  • the Agreement reached is unusual, unconventional and may not be approved by the Court;
  • the Agreement involves third parties;
  • to address time constraints/effect a settlement quickly.
  • Both documents set out the agreement reached.
  • Both documents are binding and enforceable.
  • Both documents enable you to benefit from stamp duty exemptions, such as if one partner is transferring their interest in a property to the other.
  • Both documents require financial disclosure and deal with all of the assets, liabilities, superannuation and resources of both partners (often called “the asset pool”).

Consent Orders refers to the document signed by the separating couple along with a document called an “Application for Consent Orders”. Together these documents set out the couple’s assets, liabilities, superannuation and financial resources (and their values), and what is to happen to each of those items in the settlement.  

The documents are filed with the Family Court of Australia (a filing fee is charged by the Court) and reviewed by a Registrar. You are not required to attend Court.  Provided that the Registrar is satisfied that the Orders are just and equitable, he/she will grant those Orders.  This is the day that the Orders become binding and enforceable upon the separating couple, and the clock starts ticking in respect to any time limits in the Orders. 

You do not have to get legal advice from a solicitor to prepare/lodge Consent Orders. 

Binding Financial Agreements are essentially a Deed that sets out the asset pool and what is to happen to each item in the settlement.  In order to be binding and enforceable, both parties must obtain independent legal advice as to the nature and effect of the Agreement, as well as the advantages and disadvantages to him/her in entering into the Agreement at the time.  The solicitor for each partner must provide a statement of independent legal advice, attesting to this advice having been given. 

The Agreement does not get filed with the Court, and does not require a Registrar to review and approve the settlement. 

Most property settlements can and should be formalised by way of Consent Orders, for many reasons, including that they are easier to enforce if things go awry, Binding Financial Agreements have very technical requirements and do not require the approval of a Registrar of the Court (who in respect of Consent Orders, needs to be satisfied that the settlement is just and equitable in order to approve the orders).

Generally, Binding Financial Agreements are reserved for unusual cases/settlements that may not be approved by a Registrar, if filed with the Court as Consent Orders. 

Both Consent Orders and Binding Financial Agreements should be prepared by lawyers with expert knowledge of Family Law.  It will give you peace of mind to know that your property settlement does what you think it does, it won’t cause you headaches or have any hidden surprises down the track.  

“Going through a separation is not pleasant. O’Reilly Shaw Family Law provided a very efficient and courteous service. Louise walked me through the process and made everything as stress-free as possible. Forms were simple to complete, communication was excellent and the timing was better than I had expected. Costs were all explained clearly and fees were charged honestly. My case was resolved efficiently and cost-effectively. Without question I would recommend O’Reilly Shaw Family Law. Thank you Louise for turning something I was fearing into a much easier and more positive process.”

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