Binding Financial Agreements: Are They Enforceable?
How Binding Are So-Called Binding Financial Agreements?
The Family Court's Recent Decision
A recent decision of the Family Court has put in doubt just how binding are the so-called 'binding financial agreements'.
While the intention of the law is to allow people to structure and plan for their financial
affairs in the event of a separation, the Family Court, protective of its power to make
overriding property adjustment orders, has in a very recent decision, taken a very strict
approach in interpreting the formal requirements of such agreements.
Requirements for Binding Financial Agreements
The requirements of the Act must be strictly adhered to including:
- That both parties receive independent legal advice before signing the agreement;
- That each solicitor provide a certificate attesting to the very specific requirements of the Act;
- That both parties sign the one agreement and not two counterpart;
- Amendments, particularly handwritten amendments, should be avoided.
Importance of Reviewing Existing Agreements
All existing Binding Financial Agreements (pre-nuptial agreements) should be reviewed in light of such recent decisions so as to ensure that they are indeed binding.
Why You Need Specialist Family Lawyers
Given the strict compliance rules, specialist Family Lawyers should be instructed.
