Binding financial agreements & assets planning

Binding financial agreements (BFAs) set out how assets are to be allocated in the event that a relationship breaks down. It can be made before (prenup), during or after a relationship. A Binding Financial Agreement sets out how all the assets, financial resources and liabilities, of both parties as individuals and in partnership, will be divided should the relationship break down.

Legal Advice must be obtained

Common to all types of binding financial agreements is the requirement that each party has obtained legal advice independently of the other party to the agreement, and had the implications of signing the Binding Financial Agreement fully explained to them.

Advantages of Binding Financial Agreements

  • A Binding Financial Agreement (BFA) is created at a time when you are not angry or upset and so there is maximum goodwill from each party to the other
  • Having a BFA in place ensures each party is clear on how the assets will be divided up in the event that a separation occurs.
  • Having a BFA in place can also eliminate the need for the parties to resolve the allocation of assets via the court system.
  • BFA’s can be very reassuring if you have more or fewer assets than your partner or if you have previously been through the breakdown of a relationship.
  • A BFA protects ownership and retention of interests in businesses that might otherwise have to be at least valued or at worst sold on any separation.

Frequently Asked Questions

Can we do a pre-nup?

Yes; in Australia there are 3 broad categories:

  • A Binding Financial Agreement at commencement of a relationship;
  • A Binding Financial Agreement at during a relationship; or
  • A Binding Financial Agreement at after a relationship.

What is a BFA?

A document setting out how assets are divided if you break up in the future, agreed now whilst you are both friends and which excludes a future Court battle.

What if he/she won’t sign?

In modern relationships this is not so much a question but often an underlying issue causing such a reaction we identify and resolve by disclosure or a more specific “carve out” agreement after discussions with the other spouse or their lawyer. Collaboration is important.

Is it bullet proof?

Never, it’s an insurance policy. Like any policy, sometimes they fail, perhaps where there has been a child born, a failure to disclose, a life changing injury for example. Insurance is still worth having though – even if there are some exclusions.

Our Family Law Team have extensive expertise in the area of advice and the drafting of sound Binding Financial Agreements in both prenuptial (pre-nup) and post relationship (post-nup) scenarios.

Contact a member of our Family Law Team today and benefit from our experience in this complex area.

Guest Expert

Clayton Long is widely acknowledged across the industry for his expertise in the area of Family and Relationship Law. In addition to this, he also has substantial experience in Commercial Litigation and Employment Law. He is one of the Founders of Clinch Long Woodbridge (CLW).

Clayton began his professional career as an Accounting Intern with Price Waterhouse Coopers after completing his Commerce degree and eventually, after going on to graduate in Law, took up a role with Minter Ellison, working within their Taxation, Commercial Litigation and Insolvency divisions.

In 1991 he joined Potts Latimer Solicitors as a specialist Litigation lawyer and remained there until 1994, when he co-founded Clinch Neville Long, which eventually became Clinch Long Woodbridge.

Over the last 25 years, Clayton has successfully resolved thousands of Family Law cases, enabling 97% of parties to reach a legal resolution, without the need to conduct a court hearing.
Clayton has a Bachelor of Commerce and Bachelor of Law from the Australian National University and a Masters of Law from Sydney University. He was admitted as a solicitor in 1989.