Family Law – Binding Financial Agreements Under the Family Law Act 1975 (Cth)
If you’ve recently entered a new relationship,have been in a new relationship for a time,or are considering ending your relationship,you should consult a lawyer to learn your rights and obligations under the Family Law Act 1975 (Cth) (‘the Act’).
While married couples have had access to Binding Financial Agreements under the Act since 27 December 2000, Australian States and Territories implemented legislation that came into effect on 1 March 2009 permitting de facto and same sex couples to organise their familial obligations in writing.This means that all spousal relationships are now subject to the scrutiny of the law and courts, from the date the relationship commenced.
How long does it take to write a Binding Financial Agreement, get it signed and in place?
A client of mine recently attended our offices seeking advice about getting a Binding Financial Agreement for their relationship.The client wanted to ensure that the Binding Financial Agreement was implemented before a significant transaction and relationship transition occurred.That client instructed the document be drafted within one month of their initial attendance at LAC Lawyers. Is this request capable of being fulfilled?
Like all questions about time and the law, our answer to your individual question will depend on your individual circumstances. As a guide, the process involved in obtaining a legally binding married, de facto or same sex relationship Binding Financial Agreement under the Act is:
1. initial client meeting to take instructions about your relationship, financial and family circumstances;
2. your collection of all financial information pertinent to your relationship from the commencement of the relationship to the time of the Binding Financial Agreement including but not limited to:
>> income tax records;
>> bank statements;
>> superannuation account statements;
>> trust fund statements and all company records relating to those trusts and their assets such as the involvement of all third parties and their relationship to the trust/company, and taxation, profit and loss statements for the trust/company;
>> real property holdings whether Australian and/or overseas, and valuations for same to be annexed to the resulting Agreement;
>> personal property holdings of value whether Australian and/or overseas, and valuations to be annexed to the resulting Agreement;
>> a personal property register for each party and jointly within the relationship or as held with third parties for items exceeding $100 in value; and,
>> a statement of all of your liabilities including but not limited to Maintenance and Child Support Agreements and Assessments by the Child Support Agency, credit cards,store cards, personal loans, mortgages, personal and/or corporate taxation debts and contingent liabilities under contracts with third parties;
3. writing a Financial Statement to be annexed to the Binding Financial Agreement;
4. writing the Binding Financial Agreement which may take several drafts depending on the nature, quantity and timeliness of the information you provide for inclusion in the Binding Financial Agreement;
5. exchange of the whole of the information with your spouse’s independent lawyer;
6. receipt of your spouse’s financial information from your spouse’s independent lawyer;
7. appointing an independent financial advisor to assist you in the transaction and assess your spouse’s financial information, juxtaposed to your financial position;
8. obtaining from that financial advisor their independent financial advice about the financial advantages and disadvantages of entering into a Binding Financial Agreement with your spouse, given your respective financial positions;
9. your spouse obtaining similar independent financial advice regarding the Binding Financial Agreement;
10. receiving, assessing and negotiating any necessary draft amendments to the Binding Financial Agreement from your spouse’s independent lawyer after the financial advice is received; and,
11. finalising the Binding Financial Agreement by you signing the document at LAC Lawyers who will provide you with final advice regarding the transaction before sending the original document to your spouse’s independent lawyer for their signature on the document and receipt of final advice on the transaction.
If you are interested to know something more about Binding Financial Agreements Under the Family Law Act 1975 (Cth) and Family Lawyers then please visit our website www.laclawyers.com.au
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