Alliance Family Law welcomes the Government introducing the Family Law Amendment (Financial Agreements and Other Measures) Bill 2015 into Parliament today.
As practicing lawyers offering advice on binding financial agreements (BFA’s or ‘pre-nups’), and drafting them, we have found the requirements of existing legislation to be confusing to many clients and drive up costs due to uncertainty around these agreements.
The new provisions aim to do the following – as summarised by the Family Law Section of the Law Council of Australia on 25 November 2015:
- “Address uncertainties in the current financial agreement provisions in the Act, to ensure that prospective, current or former parties to a marriage or de facto relationship can resolve their financial and maintenance matters without involving a court;
- In particular, the proposed amendments make clear that a court is not to consider the question of whether or not the requisite legal advice has actually been given when determining whether a Financial Agreement is binding. Parties will be able to rely on the certificate or statement of legal advice without the current uncertainty associated with that issue”
At present, courts have sometimes looked behind the certificate certifying that advice was given, and examined the actual quality of the legal advice. This may be because a person claimed the advice was so poor, it could not be said that they had ‘independent legal advice’. As a result, some clients are very uncertain whether they should enter into a BFA because they cannot guarantee that their spouse has had adequate legal advice. Or they are unhappy about paying legal fees thinking they have a watertight BFA but deep down worrying whether it can be set aside because the spouse’s advice was inadequate.
The new bill also aims to:
- Enable state and territory courts making an interim family violence protection order to suspend or vary existing parenting orders until either a time specified by the court, or another court order is made;
- Strengthen Australia’s laws against international parental child abduction by introducing new offences relating to the wrongful retention of a child overseas;
- Strengthen the courts’ powers to dismiss unmeritorious applications.”
