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Binding Financial Agreements or Prenuptial Agreements as they are commonly referred to give you the power to opt out of the Family Court System.

Couple’s whether married or defacto may make a Financial Agreement to deal with the division of property but also the maintenance of each party.

These agreements can be made either:

  • Before you enter into the relationship or marriage ( this is referred to as the prenuptial agreement):
  • During the relationship;
  • After the relationship has ended.

A Financial Agreement need not be a just and equitable outcome and does not have to comply with the normal principles of law.

There are certain criteria that make the Binding Financial Agreement Binding and these are:

  • Proper disclosure of assets and liabilities

Before signing, both parties must have obtained independent legal advice regarding:

  • the effect of the agreement on their rights; and
  • the advantages and disadvantages of the agreement.
  • The agreement must be freely entered into by both parties.

The agreement must be signed by both parties, and

You must have a Certificate of Independant Legal Advice from your solicitor showing you have received advice.

These are complex documents and it is important you be guided by legal advice in order that all the technical requirements have been met.

The courts in recent years have decided many cases with the result being Binding Financial Agreements being set aside for failure to comply with the technical requirements mentioned above.

For an example of how the Courts treat Binding Financial Agreements please see our Article under the heading “Resources”.

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