The Family Law Act allows couples to sign financial agreements prior to marriage to allow the division of property to be agreed up front. Although these agreements are seen as a very difficult conversation to have they can avoid a lot of issues if a relationship breaks down. These agreements are also useful when one or both parties have significant assets prior to commencing the relationship and they wish to ensure if the relationship does breakdown they are able to keep those assets.
A BFA under the Family Law Act 1975 (Cth) must meet several key requirements to be considered legally binding. These requirements ensure that the agreement is fair and that both parties fully understand its implications. Here are the main requirements:
Written Agreement: The BFA must be in writing and signed by both parties.
Independent Legal Advice: Each party must receive independent legal advice from a legal practitioner about the effect of the agreement on their rights and the advantages and disadvantages of entering into the agreement.
Legal Advice Certificate: The legal practitioner who provided the advice must give a signed statement confirming that the advice was given. This statement must be attached to the agreement.
Voluntary Agreement: The agreement must be signed voluntarily, without any undue influence or pressure.
Original and Copy: After signing, an original copy of the agreement must be given to one party, and a certified copy must be given to the other party.
Not Terminated or Set Aside: The agreement must not have been terminated or set aside by a court.
If these requirements are not met, the BFA may not be legally binding and could be set aside by a court. It's important to note that the court does not assess the fairness of a BFA. As long as the agreement meets the legal requirements, the parties are bound by it, even if it is not considered 'just and equitable'.
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