Married or de facto couples (including same-sex couples) have a right to make Financial Agreements about financial matters that are legally binding. Such an agreement (sometimes referred to as a Binding Financial Agreement, a BFA, a Pre Nuptial Agreement, a Pre Nup or a Cohabitation Agreement) can be made before, during or at the end of a relationship.
A Financial Agreement is a written document which sets out what you and your partner have agreed to do with respect to financial matters (including property settlement, maintenance and Superannuation splitting) in the event of a breakdown of the relationship. A Financial Agreement does not have to be approved by a court- in fact, it is used in order to ensure that a Court cannot interfere with private arrangements made between two consenting individuals.
The Family Law Act states that a Financial Agreement is binding on the parties to the agreement:
if, and only if:
(a) the agreement is signed by all parties; and
(b) before signing the agreement, each party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement
(c) either before or after signing the agreement, each party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(ca) a copy of the statement referred to in paragraph (c) that was provided to a party is given to the other party or to a legal practitioner for the other party; and
(d) the agreement has not been terminated and has not been set aside by a court.
The Court can declare a Financial Agreement invalid if these conditions are not met, or if fraud or non-disclosure is involved. It is essential that you have an expert family lawyer advising you on Financial Agreements. The cost involved is insignificant compared to the future cost and stress of potential Court Litigation.