Binding financial agreements
A binding financial agreement sets out how property will be divided if a relationship ends. Done properly it takes the question away from a court entirely, which is the whole point of having one.
They can be made before a marriage, during it, or after separation, and the same applies to de facto relationships. The technical requirements are strict and the consequence of missing one is an agreement that does not do the job it was bought to do.
What we help with
Situations we act in
We are commonly asked to help with:
- An agreement before marriage or before moving in together, often where one person owns a home already
- Protecting an inheritance, a family business or a farm from a future claim
- An agreement during a relationship, including after a large gift or a restructure
- Recording a settlement after separation without filing consent orders
- Independent legal advice on an agreement the other side’s lawyer has drafted
- Second relationships where there are children from a first, and an estate to protect
- Reviewing an old agreement after children, a business sale or a move
- Challenging or defending an agreement that one party now says should not stand
How we approach it
How Ben and Troy run a financial agreements matter
The value of an agreement is entirely in how well it is drafted. That shapes how we do this work.
- We will tell you if you do not need one
- An agreement is not the right answer for every couple, and being sold one you did not need is a poor start. Where consent orders or simply doing nothing would serve you better, we will say so.
- Independent advice is a requirement, not a formality
- Each of you must receive advice from your own lawyer, about the effect on your rights and the advantages and disadvantages of signing, and a signed statement of that advice has to be exchanged. An agreement where one party was rushed through this is an agreement built on a fault line.
- Full disclosure protects the agreement, not just the other side
- A court can set an agreement aside for fraud, which expressly includes failing to disclose something material. Understating what you own to get a better deal is how you end up with no agreement at all, years later, at the worst possible moment.
- We draft for the relationship you will have, not the one you have now
- Most agreements are signed when things are good and read when they are not. Children, a business sale, an illness or a move can all make a clause that seemed sensible unworkable. Drafting for those changes is most of the skill in this area.
Typical process
What usually happens, step by step
Every matter differs, but the shape is usually this.
- 01
Advice on whether an agreement suits you
We go through what you are trying to protect, what would happen without an agreement, and whether one is the right tool. Sometimes the honest answer is that it is not.
- 02
Disclosure and terms
Both of you set out what you own and owe, and we work through how property is to be divided, whether spousal maintenance is dealt with, and what happens if circumstances change.
- 03
Drafting and independent advice
We draft, the other party takes the agreement to their own lawyer, and each of you receives and signs off on independent advice. Allow real time for this. An agreement signed the week of a wedding invites exactly the argument you are trying to avoid.
- 04
Signing, and keeping it current
Once signed and exchanged the agreement operates without any court involvement. It is worth revisiting after a significant change, because an agreement written for two people without children reads very differently once there are.
Questions
Common questions
Is a prenup actually binding in Australia?
Do we both need our own lawyer?
Can we make one after we have already separated?
Does it cover our children?
Can an agreement be set aside?
We are not married. Can we still have one?
What if my partner refuses to sign?
Who acts for you
Ben Vincent
Family lawyer and co-founder
Accredited Specialist in Family Law
Ben@vincentbroussard.com.auFull profile
Related
- Property settlementsDividing property, superannuation and debt, and working out what a fair split looks like.
- Divorce and separationThe formal steps of ending a marriage, and the decisions that need to be made alongside it.
- Mediation and negotiationResolving matters without court where that is realistic, and preparing properly for it.
Reviewed by Ben Vincent on .
This page is general information about family law in Victoria. It is not legal advice and it does not take your circumstances into account. Speak with a family lawyer before acting on it.