Bad Binding Financial Agreement (BFA)?


What does that mean for you?

Since 2000 (for married couples) and 2009 (for de facto couples) couples in a relationship can chose to make private financial arrangements at the beginning, during or at the end of the relationship.

Parties can enter into these agreements as they see fit and without employing the principles or law a Court would employ if they were to determine the division of property at the end of a marriage or de facto relationship.

The advent of Financial Agreements (and Binding Financial Agreements) means that parties to a marriage or de facto relationship can strike whatever agreements they wish, provided the Binding Financial Agreement meets the formal and legal requirements for those Agreements. There is no legal requirement for the BFAs to be “just and equitable” according to the law or the facts of the case, as is required if the Court is to make property settlement Orders.

However, this is an area of law that continues to evolve, and the willingness and ability for the Court to set aside Binding Financial Agreements (BFAs) in certain cases has lead to the question – will the Court set aside a BFA – because the Agreement was unfair to one of the parties?

The Court does have the power to set aside Binding Financial Agreements, and often does so. An example of this is the case of Thorne v Kennedy [2017] HCA 49 – which you can read about in our article “Pre-nuptial”.

Agreements in Australia – Are they still valid?

If you have a Financial Agreement, Binding Financial Agreement or are considering entering one, you need the advice and representation of an experienced family lawyer who is up to date with the legal developments in this area.

Our experienced family lawyers at Argent Law can give you expert, confidential and timely advice regarding your Agreement.

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