A binding financial agreement that sets out how the property or financial resources of the parties to the relationship is to be divided.
Binding financial agreement? Consent Orders? Financial Orders? We will assess your situation and advise the most suitable solution for you.
If you are unable to adequately support yourself after divorce or separation, you can apply to the courts for spousal maintenance from your ex-partner.
People know these agreements as ‘prenuptial agreements’ but the legal term is ‘financial agreements’.
A Binding Financial Agreement sets out how all or any of the property or financial resources of either or both of the parties to the relationship is to be divided.
A Binding Financial Agreement is the most cost-effective way for the parties to finalise a property settlement, avoid disputes and court proceedings in the unfortunate event of separation.
You can make a financial agreement before, during or after a marriage or de facto relationship. These agreements can cover:
While it may be possible for you to reach an agreement in writing with your partner regarding financial issues, such an agreement is not legally binding. In other words, it can be overturned by any party.
A Binding Financial Agreement is only legally binding when:
Yes, Binding Financial Agreements can be overturned by the Family Court if they are not carefully drafted or properly executed.
The most common reasons for Binding Financial Agreements to be set aside are as follows:
To ask the Court to set aside a Binding Financial Agreement, you will need to file an application with the Court, including an order to declare the agreement invalid and deal with the enforcement.
If the Agreement is set aside, then each party is free to apply to the court for a property settlement, like any other separated couple.
A divorce and property settlement are two different legal processes. Although property settlement is not compulsory for divorce, it is still an essential way to secure your personal property and finalise your financial ties with your ex-partner.
If you fail to do property settlement properly:
More reading:
Who gets to keep the pet after a breakup?
Yes, you can.
Getting divorced and formalising a property settlement are two separate legal issues. The applications can be filed in any order, or at the same time. There is no need to wait until you are divorced to finalise your property settlement.
You may:
If you are able to reach an agreement on the division of property, we can assist you to prepare one of the following documents to make a property settlement legally binding while safeguarding your interests:
The differences between a BFA and a Consent Order are shown below:
| Binding Financial Agreement | Consent Order | |
|---|---|---|
| Who decides what can be included? | Both parties | Court |
| Is the division fair and reasonable? | Not necessarily. The agreement will reflect agreement reached by both parties. | Yes. Court must decide if agreement is just and equitable. |
| Must obtain independent legal advice? | Yes | No |
| Is it flexible? | Yes | No |
| Is it enforceable? | Yes, if both parties obtained independent legal advice. | Yes, enforced by court. |
| Can I alter agreement? | Yes | Must obtain court order |
| What can it include? | Financial or property matters | Financial or property matters Parenting matters |
Learn more:
1.Six Common Mistakes about Divorce and Property Settlement in Australia
2.Binding Financial Agreements vs Consent Orders
You can apply to a court for Financial Orders, including orders relating to the division of property and payment of spousal maintenance. The Court must ensure the division of property is fair to both parties.
You should know that applying for Financial Orders should be the last step to take. This is because this process can be time consuming and expensive for both parties involved.
Learn more
Can’t reach an agreement about property settlement. What should I do now?
Both married couples and de facto partners can seek spousal maintenance from their partners after separation if they cannot adequately support themselves.
To apply for spousal maintenance, you need to satisfy the following two requirements:
If you were married
You must make spousal maintenance application within 12 months of your divorce becoming final.
If you were in a de facto relationship
You must make application for de facto partner maintenance within 2 years of the breakdown of your relationship.
If you missed the time limit
If you have exceeded the deadline to apply for a spousal maintenance order, you are required to apply to the Court for special permission.
There is no formula for calculating how much spousal maintenance you can get. When assessing whether spousal maintenance should be paid and how much, the court will consider your financial needs and the financial capacity of your spouse.
The court takes into account the following:
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Once you engage us, we will gather the required details and work on your case.
We provide the most efficient solution and give you instant updates.
We will strive to achieve the result satisfying your best interests.
