Shann Family Lawyers has now merged to form Culshaw Miller Lawyers Perth. Please go to our new website. Read more about > Binding Financial Agreements here.

Contracting Out of the Legal System

Private Arrangements for Property Distribution

Parties can negotiate binding financial agreements before they get married, while they are married and even after separation. These agreements – if properly executed with appropriate legal advice – prevent the Courts from interfering with property.

There are some restrictions on how far a binding financial agreement will prevent the Courts from interfering and some conditions that must be met before the Courts will uphold an agreement.

However, the situation is now very much different from that which existed previously and parties with significant property should obtain legal advice as to how the new laws will apply in their own particular cases.

Binding Financial Agreements – An Alternative Solution

From late 2000 it has been possible to enter into a Binding Financial Agreement which has the effect of excluding the Family Courts from determining property distributions. The Agreements may be entered into prior to, during or after a marriage has broken down. Previously such agreements (“pre-nuptial agreements”) were not binding and the Family Court could amend (or ignore), at its discretion, any of the terms of the agreement.

Binding financial agreements can be made dealing with all or any of the parties’ property, financial resources and issues of maintenance.

A financial agreement must be in writing and each party must obtain independent legal advice.

The Benefits of Binding Financial Agreements
  • – to protect existing assets or likely inheritances;
  • – to ensure that children of previous relationships inherit;
  • – to preserve family farms or other businesses for future generations;
  • – to give greater weight to the contribution of a higher income earner; or
  • – to avoid disputes about financial matters at the end of a relationship.

It is very important that you obtain independent legal advice regarding binding financial agreements.

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