Family and Divorce Lawyer in Melbourne: Binding Financial Agreements (BFAs) under Family Law Act 1975
If you are considering entering into a binding financial agreement (BFA) in Melbourne, it is important to understand the legal requirements under the Family Law Act 1975 (Cth) (FLA) to ensure the agreement is binding. BFAs are agreements that cannot be varied unless a terminating agreement or a new financial agreement is entered into. They remain binding on the deceased's legal representative if one party dies.
Section 90G of the FLA sets out the requirements for a BFA to be binding. All parties must sign the agreement, and each spouse must have received independent legal advice before signing. A signed statement by the legal practitioner must also be provided before or after signing, with a copy given to the other spouse. Additionally, the agreement must not have been terminated or set aside by a court.
A BFA will also be binding if the court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement, regardless of any changes in circumstances from the time the agreement was made.
When advising clients on entering a financial agreement, the legal practitioner must obtain as much detail as possible about each party's financial and non-financial circumstances to prepare an accurate agreement and avoid any future allegation of non-disclosure. The client must also be advised on the advantages and disadvantages of entering into an agreement.
If a client is entering into a financial agreement before marriage, the legal practitioner should question the client's reasons for doing so, considering that circumstances may change in the future. Additionally, clients who are separated or divorced should be provided with the option to file consent orders in court instead of entering into a financial agreement, ensuring the proposed terms of the arrangement are just and equitable.
It is crucial to note that the practitioner has a significant statutory role in ensuring that a financial agreement is binding. If a practitioner does not meet their obligations under this section, they may face costs and further actions against them.
If you need assistance with binding financial agreements, contact a family or divorce lawyer in Melbourne who can provide expert legal advice tailored to your unique circumstances. They can assist you in understanding the legal requirements, the advantages and disadvantages of entering into an agreement, and ensure that your interests are protected.
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