The Attor­ney-Gen­er­al, Sen­a­tor George Bran­dis, recent­ly announced pro­posed changes to the law regard­ing bind­ing finan­cial agree­ments — also com­mon­ly known as ‘pre-nup­tial’ agree­ments.

The term ‘pre-nup­tial’ is a mis­lead­ing one, since a bind­ing finan­cial agree­ment (BFA) can actu­al­ly be made before, dur­ing or after a mar­riage or de fac­to rela­tion­ship.

The changes have been put for­ward in order to remove uncer­tain­ties around some of the require­ments for enter­ing, inter­pret­ing and enforc­ing BFAs.

These agree­ments usu­al­ly cov­er finan­cial set­tle­ments in the event of the break­down of a mar­riage or de fac­to rela­tion­ship. They can also spec­i­fy the finan­cial sup­port of one spouse by the oth­er, and any oth­er inci­den­tal issues both par­ties wish to include. BFAs usu­al­ly include all prop­er­ty and assets, as well as any debts and lia­bil­i­ties. BFAs can­not doc­u­ment par­ent­ing agree­ments.

Hav­ing a BFA can help pre­vent a finan­cial or prop­er­ty dis­pute end­ing in court in the event a mar­riage or de fac­to rela­tion­ship breaks down, avoid­ing what can be a cost­ly, lengthy and stress­ful process.

If accept­ed, the pro­posed changes will see the Fam­i­ly Law Act amend­ed to ensure spe­cif­ic pro­vi­sions in the Act are more clear­ly under­stood, with a view to min­imis­ing the poten­tial for dis­putes with regard to the enforce­abil­i­ty of BFAs.

The pro­posed amend­ments have been pre­sent­ed in the form of a con­sul­ta­tion paper, which can be found on the Attorney-General’s web­site Pub­lic com­ment is invit­ed until 19th June, 2015.

At Dono­van Oates Han­naford Lawyers, we’re close­ly mon­i­tor­ing the process, and look for­ward to the out­come. Please con­tact Hadyn Ori­ti on (02) 6583 0449 for fur­ther infor­ma­tion with regard to BFAs.

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