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People know these agreements as ‘prenuptial agreements’ but the legal term is ‘financial agreements’.

A Binding Financial Agreement sets out how all or any of the property or financial resources of either or both of the parties to the relationship is to be divided.

A Binding Financial Agreement is the most cost-effective way for the parties to finalise a property settlement, avoid disputes and court proceedings in the unfortunate event of separation.

You can make a financial agreement before, during or after a marriage or de facto relationship. These agreements can cover:

• financial settlement (including superannuation entitlements) after the breakdown of the relationship
• financial support (maintenance) of one party by the other after the breakdown of a marriage or a de facto relationship
• or any incidental issues

While it may be possible for you to reach an agreement in writing with your partner regarding financial issues, such an agreement is not legally binding. In other words, it can be overturned by any party.

A Binding Financial Agreement is only legally binding when:

1. The Agreement is signed by both parties.
2. Before signing the Agreement, each party was provided with independent legal advice about the effect of the Agreement on their rights, as well as the advantages and disadvantages of making the Agreement.
3. After signing the Agreement, each party was provided with a signed statement by their lawyer confirming that advice was provided.
4. Signed copies of the two lawyers’ statements are exchanged between the parties.
5. The Agreement has not been terminated or set aside by the court.

Yes, Binding Financial Agreements can be overturned by the Family Court if they are not carefully drafted or properly executed.

The most common reasons for Binding Financial Agreements to be set aside are as follows:

• The Agreement was obtained by fraud or under duress (for example, requiring someone to sign shortly before the wedding under threat).
• There was failure to disclose assets or relevant information.
• The Agreement was entered to defeat or defraud a creditor.
• There have been significant changes to either parties’ circumstance.
• There has been changes in circumstances relating to a child, and it would result in hardship for the child or their caregiver if the Agreement is not set aside.

To ask the Court to set aside a Binding Financial Agreement, you will need to file an application with the Court, including an order to declare the agreement invalid and deal with the enforcement.

If the Agreement is set aside, then each party is free to apply to the court for a property settlement, like any other separated couple.

A divorce and property settlement are two different legal processes. Although property settlement is not compulsory for divorce, it is still an essential way to secure your personal property and finalise your financial ties with your ex-partner.

If you fail to do property settlement properly:

1. Your property division may be unfair and unreasonable
2. Your liabilities may not be separated after separation/divorce
3. The other party may still be eligible to claim your property after separation/divorce
4. After the time limit to apply for financial orders, it would be harder to properly settle property issues

More reading:
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Yes, you can.

Getting divorced and formalising a property settlement are two separate legal issues. The applications can be filed in any order, or at the same time. There is no need to wait until you are divorced to finalise your property settlement.

You may:

1. Apply for a divorce and within 12 months of the divorce being finalised apply to court for property settlement order; or
2. Apply for property settlement order and apply for a divorce afterwards

If you are able to reach an agreement on the division of property, we can assist you to prepare one of the following documents to make a property settlement legally binding while safeguarding your interests:

• Binding Financial Agreement (BFA)
• Consent Orders

The differences between a BFA and a Consent Order are shown below:

Learn more:
1.Six Common Mistakes about Divorce and Property Settlement in Australia
2.BFA vs Consent Order, which one should I choose?

You can apply to a court for Financial Orders, including orders relating to the division of property and payment of spousal maintenance. The Court must ensure the division of property is fair to both parties.

You should know that applying for Financial Orders should be the last step to take. This is because this process can be time consuming and expensive for both parties involved.

Learn more
Can’t reach a financial agreement. What should I do?

Both married couples and de facto partners can seek spousal maintenance from their partners after separation if they cannot adequately support themselves.

To apply for spousal maintenance, you need to satisfy the following two requirements:

• You are unable to adequately support yourself
• The other party is able to pay you spousal maintenance

If you were married
You must make spousal maintenance application within 12 months of your divorce becoming final.

If you were in a de facto relationship
You must make application for de facto partner maintenance within 2 years of the breakdown of your relationship.

If you missed the time limit
If you have exceeded the deadline to apply for a spousal maintenance order, you are required to apply to the Court for special permission.

There is no formula for calculating how much spousal maintenance you can get. When assessing whether spousal maintenance should be paid and how much, the court will consider your financial needs and the financial capacity of your spouse.

The court takes into account the following:

• Your age
• Your health condition
• Your income, property and financial resources
• Your ability to work
• What is a suitable standard of living
• If the marriage has affected your ability to earn
• Who do the children live with (under 18 or adult children with disability)

Learn more
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