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Understanding the Agreement
A binding financial agreement (previously referred to as pre-nup) (“BFA”) is made between couples who are de factoes, soon to be married or already married. It can be entered into either before, during or after a relationship or a marriage. A BFA can be made between de facto couples of the same sex.
What’s Included in BFAs
A BFA states how assets, financial resources and liabilities will be divided if a relationship or a marriage breaks down.
By making a BFA, parties lose the right, which they would otherwise have, to apply to the Family Court of Western Australia (“Court”) to resolve the division of their assets and liabilities between them after they separate.
BFAs allow both parties to agree in advance how their assets and liabilities will be divided if their relationship or their marriage fails.
Who Should Enter Into a BFA
Typically, couples who enter into a BFA include those who are:
- Cohabitating or intending to cohabit;
- Married or intending to get married;
- Already separated; and/or
Conditions to Note
Both parties who want to enter into a BFA must ordinarily be residents in Australia.
Each of the parties must have their own independent legal advice about the terms of the BFA, and each of their lawyers must provide a certificate confirming they have given the party legal advice.
It is important to know that the independent advice for the parties cannot be given by the same lawyer and should not be given by lawyers working for the same firm.
It is usually not recommended that couples sign a BFA in the days leading up to their wedding as it could later be argued that the agreement was signed under duress and, because of this, should be set aside.
However, it is never too late to enter into a BFA. You can enter into a BFA at any time during or even after your relationship or marriage.
Find out More
Havilah Legal provides services to our clients through both the preparation and review of Binding Financial Agreements. For assistance and advice relating to Binding Financial Agreements, please contact our Family Lawyers today.”