Advice

Agreements ( “pre-nuptials”)

Parties who are contemplating entering into a domestic relationship in the ACT and NSW or who are in a domestic relationship can have an agreement drawn up with respect to financial and non-financial matters. These agreements are called “Domestic Relationship Agreements” and “Cohabitation Agreements”.

Similarly, parties contemplating terminating a domestic relationship or those parties who have terminated their domestic relationship can enter into an agreement as to financial matters and non-financial matters. These agreements are called “Termination Agreements”.

Such agreements, if valid, are subject to and enforceable in accordance with the law of contract. If the agreement meets certain stated requirements the Court shall not make an order that would be inconsistent with the terms of the agreement. Even if the Court is satisfied that one of the matters following have not been complied with, the Court may nevertheless have regard to the terms of the agreement.

A Court may vary or set aside the provisions of the agreement even if all the above requirements are met if it is satisfied that the enforcement of the agreement would result in serious injustice. Furthermore a Court is not required to give effect to the terms of the agreement if it is satisfied that the parties have by words or conduct revoked the agreement or consented to its revocation or the agreement has otherwise ceased to have effect.

Changes made to the Family Law Act on 27 December 2000 have resulted in married couples now being able to enter into Binding Financial Agreements (BFA’s) prior to marriage, during marriage, after their marriage has ended and even after their divorce as to financial matters and non-financial matters.

Since the changes to the legislation, many clients have approached us to discuss entering into a Binding Financial Agreement.

The complex issues regarding assets and rights during marriage breakdowns, claims by children from previous marriages, or the distribution of inheritances or business operations all call for careful decision making – earlier rather than later.