Legal Advice Needed to Understand Binding Financial Agreements

When a relationship breaks up there are obviously a number of issues that must be confronted, usually when the parties are in an extremely emotional state. This volatile environment is even more difficult when there are children involved. One of the issues that cause the most conflict is potential distribution of the shared finances, and couples frequently turn to the legal system to help them reach agreement when they are unable to do it themselves. One way to prevent this situation for people in Australia who have substantial assets is to enter into binding financial agreements prior to their marriage, or as they are commonly known in celebrity circles overseas, prenuptial agreements.

Valid binding financial agreements can oust the jurisdiction of the courts, but they have their limitations. Family law Brisbane advice is that while they can deal with the division of property and finances, and cover maintenance issues, they cannot do the same regarding parenting issues.

There are a number of provisions that must be met for an agreement to be recognised by the Australian legal system. The first requirement is that the agreement must be in writing and signed by all parties. Before signing, all parties must have independent legal advice from a legal practitioner, explaining how the agreement will affect their rights, and the advantages and disadvantages of entering into the agreement.

A statement from the legal practitioner who provided the advice must be attached to the signed agreement. Once made, the agreement must not be terminated or set aside, and all parties must have a copy of the agreement. This does not mean that the agreement as set is irrevocable, since circumstances can change. However, if changes are made, all the original conditions must be adhered to for the amended agreement.

Parties considering signing binding financial agreements should also be aware that they can be set aside by an order under certain circumstances. Most of those circumstances relate to fraudulent or unfair treatment of a creditor, or unconscionable conduct by one of the parties to the agreement. However, they can also be set aside if changing circumstances makes the agreement impractical, if the change would cause hardship to a child or other party, or if superannuation is involved. If the court sets aside an agreement, it can order the transfer of property in a manner which it considers fair.

Binding financial agreements cover many aspects that come out of a relationship which are subject to family and property law. Because of the complexity of these laws, a visit to family lawyers Brisbane is essential before considering such an agreement.

No-one who enters a romantic relationship expects it to end in bitterness and regret. Unfortunately the future is not there for us to see, so in cases where the worst happens, the legal system is there to protect all parties.