In Western Australia, the Family Law Act 1975 and Family Court Act 1997, allows both parties in a marriage, or de facto relationship, to enter into a binding financial agreement, often referred to as a prenuptial agreement, which outlines the arrangements for financial settlement, in the event of a breakdown of the relationship.

Serina ThomsonWhat is a Binding Financial Agreement?

A binding financial agreement plays an essential role towards protecting your assets, and gives you the relevant information in knowing your rights and responsibilities, following the breakdown of a relationship. At Thomson Family Lawyers, we appreciate the sensitivity behind this agreement and act fairly and respectfully towards all parties involved.

What is a Prenuptial Agreement?

A prenuptial agreement is the popular term used for a binding financial agreement that can be entered into before, during or after a marriage or de facto relationship. By creating this agreement mutually with your partner, you can feel secure knowing that your assets, business investments and other financial matters are protected.

Can I create my own Pre-Nup?

To be a valid and legally binding document, both parties must obtain professional legal advice on the agreement. An independent solicitor will draft and execute the document, ensuring it complies with the legislation.

At Thomson Family Lawyers, our team of Perth lawyers are experienced in providing legal advice in respect of such matters. As part of our service, we also discuss the implications of not having a binding financial agreement in place, so you are aware of all your options.

What is involved in a BFA? What things do I need to consider?

A Binding Financial Agreement will require both parties to be legally represented, as each party must obtain legal advice and receive written advice from their lawyer regarding the Binding Financial Agreement.  This is a requirement to ensure that the Binding Financial Agreement meets the requirements as set out in the legislation and to enable the Binding Financial Agreement to be valid.

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Binding Financial Agreements effectively contract outside of the just and equitable element that is required, under the Family Law Act 1975 (or Family Court Act 1997 for de facto couples), in financial settlement matters.  For this reason, both parties must obtain legal advice and such advice must be provided in strict compliance with the legislation, to ensure the validity of the Binding Financial Agreement, when it is entered into by the parties.

Parties cannot consult a lawyer together for advice on a Binding Financial Agreement.  As the interests of parties may conflict, a single lawyer is not able to advise each party appropriately, in respect of their best interests, if they are having to consider the interests of each party.  If the parties are advised by the same lawyer, there will be problems with the validity of the Binding Financial Agreement which may result in grounds to challenge the Binding Financial Agreement in future.  It is very important that each party engages their own lawyer to receive independent legal advice regarding their best interest, when considering entering into a Binding Financial Agreement.

Given the nature of the Binding Financial Agreement, it is important that you consult with a Lawyer who has experience in drafting and advising on Binding Financial Agreements.  In choosing your lawyer, you should ensure that your select a lawyer who practices exclusively in Family Law and has had experience in drafting Binding Financial Agreements, as well as advising on drafted agreements.  The costs involved with a Binding Financial Agreement take into account the works required to be undertaken by your lawyer, in compliance with the requirements of the governing legislation, and it is important that your lawyer works to ensure that they meet those requirements in order to give validity to the Binding Financial Agreement.  There are various grounds on which Binding Financial Agreements can be challenged, so it is vital that you obtain competent legal advice about such agreements, before entering into them.

 

Are Pre-Nups Enforceable in Australia?

If you have entered into any form of Pre-Nuptial Agreement outside of Australia, it is important that you seek legal advice from a lawyer practising in Family Law within the Australian jurisdiction, to obtain advice as to how the agreement may affect your financial settlement matters within Australia.

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Be sure to take a copy of the Pre-Nuptial Agreement with you when you consult with your lawyer for advice.

By deciding on your financial settlements, our family lawyers can curate a binding financial agreement that will be an individually tailored settlement agreement, suiting the needs of you and your partner, so that in the event of separation, you are each able to resolve your financial matters with certainty.

 

Take control of your finances with Thomson Family Lawyers by your side. Our family lawyers are experienced in protecting your assets through a binding financial (prenuptial) agreement in Perth. Contact us on (08) 6444 9911 to manage your financial settlement matters today.

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