Financial Binding Agreements |Prenuptial Agreement

Financial Binding Agreements

Also known as a Prenuptial agreement , a financial binding agreement is a written agreement (which complies with Part VIIIA or Part VIIIAB of the Family Law ACT 1975 (“the act”). )that will deal with the difficult issues. These issues can involve financial resources, and divide property, when there is a relationship breakdown. Any same sex or hetero de facto, or married couples.

A binding financial agreement can be made at any point before, during, or even after the marriage and/or after the divorce. These include de facto or same-sex couples.

For a binding financial agreement to be legally valid, a number of requirements have to be met. These include:

• each party must have received independent legal and advice before signing the agreement
• each party’s solicitor must provide a certificate that such advice has been given
• the agreement must clearly say that it is an agreement under the appropriate section of the Family Law Act
• each party must have signed the agreement
• each party must receive a copy of the signed agreement

The Family Law Act (‘the Act’) provides for financial agreements, or ‘BFAs’ that can be made before, during or after marriage or after divorce. BFAs can also be made before, during or after the breakdown of a de facto relationship, including a relationship for same same-sex couples.

The Different Types of Financial Agreements are:

• Binding child support agreements
• Financial agreement | Pre Nuptial ( s90B );
• Financial agreement in contemplation of a de facto relationship (Cohabitation)( s90UB );
• Financial agreement during a marriage ( s90C );
• Financial agreement during a de facto relationship 
• Financial agreements after divorce order is made ( s90D ); or
• Financial agreement after a breakdown of a de facto relationship ( s90UD ).

Post Nuptial (s 90D; s90UD) Agreements

These are agreements entered into after the breakdown of a de facto relationship, or after divorce of a married couple.

“Termination” Terminology and Financial Agreements under the Family Law Act

1. “Not binding” for technical defects at the time of entry (s 90G); or at the time of
2. entry one party engaged in “unconscionable” conduct (s 90K (1)(e); 90UM).
3. “Set aside” only by a court order for a limited list of post entry events (s 90K; 90UM).
4. “Rescinded” or “varied” by one of the parties if it is “void, voidable or unenforceable”
5. under normal common law and equitable principles which apply to contracts.
6. (s.90KA; 90UN). However, the parties’ decision to rescind can be overruled or
7. confirmed by the Family Court (s 90KA; 90UN).
8. “Terminated” (s 90J; 90UL) by another consensual financial agreement with
9. equivalent degree of formality and statements (s 90J; 90UL).

Couples entering into a pre-nuptial agreement may run the risk of it not being worth the paper it's written on, according to the Family Law Practitioners' Association of Queensland (FLPA).

This article provides basic information only and is not a substitute for a professional or legal advice . If you are seeking a legal advice on financial binding agreements, you should get advice from a family lawyer.