Binding Financial Agreement separate Agreements in one Document

05/05/2016

Binding Financial Agreements deal with financial circumstances and consequences and arrangements between parties.

The Family Law Act allows for Binding Financial Agreements to be entered into:

(a)        By married spouses either in contemplation of marriage, during marriage or after marriage,

(b)        By de facto partners either before the relationship commences, during the relationship or after the relationship ends.

The Family Law Act provides [in different sections of the Act] for the Binding Financial Agreements which apply to the different relationships and the status of the relationship at the time of entering into the Agreements as referred to above. 

One clear example is that the parties may be in a de facto relationship and thereafter marry. 

For a Binding Financial Agreement to cover each of the circumstances (either de facto or marriage) there must be separate agreements complying with the relevant Sections of the Family Law Act.

In December 2015 the Full Family Court of Australia had to consider a Document which purported to be a Financial Agreement during a de facto relationship and a Financial Agreement before marriage.  The Agreements were said to be in one document. 

The Full Family Court decided that the one Document could contain more than one Agreement.  Each of the separate circumstances must be clearly set out in the one document.  The Court considered the effect of the exclusion contained in Section 90B(1)(aa) which states that at the time of the making of the agreement, the people are not the spouse parties to any other binding agreement (whether made under Section 90B, 90C or 90D) with respect to any of those matters.  The Court decided that Section 90B(1)(aa) does not prevent separate Financial Agreements under different parts of the Act and vice versa.

There are many difficulties in relation to Binding Financial Agreements and their enforceability and there needs to be compliance in that each separate Agreement must comply with the relevant Section of the Act.

The recent case in the Full Family Court held that the two Agreements can be within one Document.  Further the Full Family Court confirmed that one could have an Agreement in relation to a de facto relationship and a further Agreement in contemplation of marriage in one Document.

The experienced Solicitors at Watson and Watson are aware of the circumstances relating to issues concerning Financial Agreements and whether they are binding or affective. 

If you have entered into a document purporting to be a Binding Financial Agreement under any of the relevant Sections of the Family Law Act and are met with circumstances where you need to rely upon the Financial Agreement, or your spouse/partner seeks to rely upon such agreement please telephone Richard Watson or his Personal Assistants to arrange for a discussion as to your circumstances.

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