Nevertheless, we came across situations that reflect the facts in Thorne v Kennedy (2017). The decision expands the circumstances under which marital agreements can be abrogated, particularly in cases where there is a significant gap between income, wealth and resources. A binding financial agreement (BFA) consists of a number of agreements that can be entered into de facto between married or already married couples, either before, during or after their relationship. It can be seized by same-sex couples and the opposite sex. A BFA shows how your assets and other financial resources and liabilities are allocated in the event of a relationship breakdown. By creating a BFA, the parties lose the right to go to a family court to decide on the division of ownership after their separation. Compelling financial agreements can be reached at the beginning of a marriage or a de facto relationship, during the relationship or after the separation. When they are concluded at the beginning of a relationship, they are sometimes referred to as „pre-marriage” agreements. Since this is a binding agreement, obtaining independent legal assistance is a prerequisite for the contracting parties if the two parties intend to be bound by such an agreement; like a binding agreement on child care. If the terms of form of the agreement, as prescribed by the Family Law, are not met, it cannot be binding or may be overturned later by a court.
This would be a good time to consider a BFA as an alternative. One example might be that the agreement explicitly excludes a party that shares some of the benefits the spouse receives during the relationship. B, for example, a legacy. The parties can therefore agree on the financial account, support and aging in the way they prefer it rather than according to the law. There is often an imbalance of economic power in relations. Since the court has not approved financial agreements, it is possible to execute an agreement that is not fair and equitable for each party. This is why it is mandatory for each party to receive independent legal advice before the agreement is signed, otherwise it is not considered binding. If a party has not received independent legal advice or signed the agreement under duress, inappropriate influence and/or indecent conduct, the agreement may be quashed by the courts. In the event of termination of an agreement, each party may initiate a process of liquidation and/or preservation of the property. If you are separated, you would enter into a „separation agreement.” However, there are different types of separation agreements depending on whether you were in fact in a relationship (a Section 90UD agreement) or whether you were married (a Section 90D agreement).
A binding financial agreement (BFA) is an agreement between two parties that go through a number of financial agreements concluded during a relationship.