Relationship Breakdown – What Happens Next?

While we all hope for ‘happily ever after’, relationships can sometimes break down. If your de facto relationship or marriage does break down, there will usually need to be a Property Settlement. This can be legally done in three ways:

• By way of a Binding Financial Agreement;
• By way of Court Consent Orders;
• By judicial determination (i.e. going to court and letting the judge decide).

The lengthy court battles, emotional and financial stress that can ensue often prompt couples to consider making a Binding Financial Agreement in advance. The benefit of using a Binding Financial Agreement to settle your assets is that you get to avoid the stress and costs of Courts. At the end of the day, we can all agree that it is better to be able to settle your own finances rather than allowing the Courts to do it for you.

What is a Binding Financial Agreement?
A Binding Financial Agreement, commonly known as BFA, is a document or series of documents that govern your property interests in the event of a separation during a marriage or a de facto relationship. A BFA can be entered into before, during or after a relationship. If made after marriage, the binding financial agreement must be made within twelve months of an order of divorce.

Why is it so Important to have an Agreement in Writing?
A BFA, essentially, a contract. Therefore, as in contract law, it is always beneficial to have such an agreement in writing, to protect both parties. If it is solely a verbal agreement, then should the relationship actually break down in the future, you have nothing to refer back to. It then becomes a ‘he said’ or ‘she said’ fight, which is never a good idea.

Can a court set aside Binding Financial Agreements?
BFAs can be set aside by the Family Court if they are not carefully drafted and properly executed. Below are the common reasons why BFAs are set aside are because:

• The Agreement was obtained by fraud or duress (for example, requiring someone to sign the BFA shortly before the parties’ wedding under threat of not going through with the wedding).
• A party failed to disclose assets or information relevant to the Agreement.
• The Agreement was entered into to defeat or defraud a creditor or with reckless disregard to the interest of a creditor.
• There have been significant changes to either or both parties’ circumstance which makes it impractical to carry out the set Agreement.
• Since the making of the Agreement, there has been a change in circumstances relating to a child, and it would result in hardship for the child or their carer if the Agreement is not set aside.

If the Agreement is set aside, then each party is free to apply to the court for a property settlement, like any other separated couple.

If you are going through a separation and want to ensure that your finances and parenting arrangement are in order, Straits Lawyers are now offering online services in both English and Chinese.

Simply purchase our online services via this link: https://straits-lawyers.square.site/product/binding-financial-agreement-consultation-bfa-/5?cs=true
Alternatively, you can email us at info@straitslawyers.com or call at 08 8410 9069 to find out more.

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Please note that this article does not constitute legal advice and Straits Lawyers will not be legally responsible for any actions you take based on this article.