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Family Law

Family Law in Canberra – When is a binding financial agreement not really binding?

By August 24, 2015No Comments

When people think about “pre-nups” (also known as binding financial agreements, or BFAs), they often assume that once one has been entered into, that’s it. It will be a binding document.

Many cases over the years have proved this isn’t in fact the case. The case law is constantly being fine tuned. This will continue to happen for many years, as happy families break down over time and old pre-nups are taken out of a filing cabinet,  dusted off and looked at. Sometimes a party wants to do everything possible to ensure it’s binding, at other times a party will want to move heaven and earth to have an unfavourable pre-nup set aside.

A recent case* has highlighted some pertinent do’s and don’ts when thinking about signing a pre-nup:

Do

  • Think about how close the date of signing the agreement is to the date you are due to give birth or get married. It can be found that you are at a special disadvantage in these circumstances;
  • Ensure you obtain proper legal advice – more than 15 minutes!;
  • Ensure the advice you receive is ideally obtained from either an Accredited Specialist in family law, or a practitioner with solid experience in family law;
  • Ensure your solicitor’s certificate that advice was provided is up to date and you are not caught out by using old precedents using outdated wording;
  • Read any written advice given and immediately tell your lawyer if you do not understand the advice;
  • Feel free to change lawyers if you do not feel your lawyer is the right one for you. Remember, you could be waiving rights worth many tens, if not hundreds, of thousands of dollars!

Don’t

  • Sign counter-parts, like exchanging contracts for sale of land. For pre-nups, it is safest to have one original, signed by everyone, and certified copies of the agreement to be distributed;
  • Pay for the other spouse’s legal advice or get too involved in making the appointments for the other party and their lawyer to sign; this can appear as quite negative influence, in hindsight;
  • Appear to over-influence your spouse’s choice of lawyer. You can give them the name of your State’s Law Society, and invite them to choose their solicitor;
  • Sign an agreement you do not understand, or sign in a rush. Ideally time should pass between you reading the agreement, reading and understanding the advice and signing the agreement.

* Raleigh & Raleigh [2015] FamCA 625 (30 July 2015), Judgement of Watts J

If you have any specific questions about either entering into a pre-nup or seeking advice on setting it aside, do not hesitate to contact our friendly team of family lawyers (Cristina Huesch, Principal and Accredited Specialist in Family Law, Sharla Stevens and Angela Li) on 02 6223 2400.

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