Binding Financial Agreements


Borchard and Moore recognise that resorting to court action for financial agreements between separated or divorced partners or spouses is both stressful and costly. Thus, settling financial issues without going to court is highly encouraged. This is where entering into a binding financial agreement becomes relevant.


What is a binding financial agreement?


A binding financial agreement is a contract between a married or de facto couple that provides for the division of property going forward and executed in accordance with the Family Law Act of 1975.


When can a binding financial agreement be made?


It can be executed at any time i.e. before, during or after marriage or de facto relationship.


When does a financial agreement become binding?


A financial agreement becomes binding when the following requisites concur:


  • Certificate of Independent Legal Advice - This is issued by a legal practitioner stating that he had given independent legal advice for both parties; that he had explained to their clients the full legal effects and consequences of the agreement to their clients; and that their clients had fully understood the said effects and consequences.


  • 'Full and frank' Disclosure - Both parties need to make adequate disclosure of their true financial positions in relation to the agreement to the other party. Otherwise, the agreement can be set aside on the basis of violating this rule.


  • Schedules of Assets - This lists all of the assets of each of the parties that are covered by the agreement.


  • Physical Financial Agreement - This contains all the provisions that have been agreed on and signed by the parties. Usually, one of the lawyers for the party prepares this and the parties would then negotiate and/or request amendments.


What can a binding financial agreement cover?


  • divisions of property, finances and settlement of debts after dissolution of marriage or separation

  • spousal maintenance

  • other incidental matters


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