S9 Property Matters and Binding Financial Agreements

Question 1

what is binding financial agreement (BFA)?

Answer 1

A binding financial agreement sets out the way some or all of a couple’s assets will be
divided in the event that their relationship breaks down.

Question 2

when can a couple come up with a BFA?

Answer 2

BFAs can be made before marriage (s90B FLA), during marriage (s90C FLA) or after divorce (s90D).
BFAs can also be made before a de facto relationship (s90UB), during (s90UC) or after a de
facto relationship has ended (s90UD) FLA

Question 3

what are the conditions for financial agreement before marriage under s90B(1) AFLA?

Answer 3

At the time of making the agreement the couples are not the spouse parties to any other binding agreement

Question 4

Matters that can be dealt with in financial agreements?

Answer 4

90B(2):
(a) How in the event of the breakdown of the marriage, all or part of any of the property
or financial resources of either or both of the spouses at the time when the
agreement is made, or at a later time and before divorce, is to be dealt with;
(b) The maintenance of either party (i) during the marriage or (ii) after divorce or (iii) both

The financial agreement may also contain matters incidental or ancillary to the above
matters: s90B(3)

Question 5

Mandatory requirement for FBA?

Answer 5

The agreement must
- Be signed by both parties
- Contain a statement that the parties have received certain legal advice as to their rights and
entitlements under the agreement and as to any property adjustment under the FLA
Further requirements
- Each party must receive a separate certificate of independent legal
- The same lawyer cannot give advice to both parties
- A copy of the agreement must be given to one party with the other party to retain the original
- There must be no other financial agreement already in place between the parties

Question 6

which sec outlines the mandatory requirement for FBA?

Answer 6

s90G FLA(for agreements relating to marriage) and
s90UJ FLA (for agreements relating to de facto relationships).

Question 7

can a financial agreement be terminated?

Answer 7

The agreement may be terminated by the parties entering into a
subsequent financial agreement providing the new agreement
contains a specific provision that terminates the former agreement:
s90J(1)(a) FLA or by the parties executing a termination agreement:
s90J(1)(b) FLA

Question 8

conditions of a FBA to be terminated?

Answer 8

S 90J(2) provides that a termination agreement will be binding only if:
- It was signed by all parties to the agreement
- All parties were given the requisite independent legal advice and
certificates
- Copies of the agreement were provided

Question 9

Circumstances in which court may set aside a financial agreement or termination agreement?

Answer 9

S90K
if the agreements has been made by ;
- Fraud
- Void or unenforceable (eg; failure to comply with formalities)
- Impracticality
- changes in the circumstances of a child of marriage
-Unconscionable conduct

Question 10

what are the advantages and disadvantage of FBA?

Answer 10

• Does not require Court approval or oversight to be binding
• Cost effective
• Greater autonomy and decision-making for parties
• Spousal maintenance
  However;
• Requirement for independent and separate legal advice
• Can be overturned by Court
• Cannot be used for spousal maintenance provisions if recipient spouse is solely reliant
  on government benefits/pension