Key information to include in your Binding Financial Agreement
You need to include the following information in you agreement:
- Your full name, address, occupation and date of birth;
- The other party’s full name, address, occupation and date of birth;
- Brief details as to when the relationship commenced, when you starting living together if you have, and when you intend to marry;
- A list and identification of the assets in your name or held on your behalf together with their value, e.g. specify what bank accounts with which financial institution and the balance of those accounts, any interest in a family company and your interest, and so forth;
- Likewise, set out in some detail what liabilities you have and the extent of those liabilities;
- Set out in detail what financial resources you have, e.g. superannuation entitlements, beneficiary of a discretionary family trust and so forth. Likewise you need to include some information as to the value of those resources;
- Set out in detail the other party’s assets and the values of those assets, their liabilities and the extent of those liabilities, and their financial resources;
- Consider how you wish the various assets, liabilities and financial resources to be dealt with during the course of the marriage and what should happen to them in the event of the breakdown of the relationship;
- Consider what, if any, effect children would have on the proposed division of the assets in the event that the relationship should break down;
- Obtain legal advice specific to your circumstances.
Keep documentation as proof of the value both parties' assets
So far as possible, you should obtain and retain proof of the value of both parties’ assets, the extent of the liabilities and the value of the financial resources. This proof can be by way of a written dated appraisal for real estate or other items (e.g. motor vehicles), bank statements, credit card statements, superannuation statements. These are extremely important documents not only to enable you to draft the financial agreement but also to prove the financial situation of both parties in the event that there is subsequently a dispute.
The Financial Agreement:
- Needs to be in writing;
- Needs to clearly identify you and the other party;
- Needs to express that it is made in contemplation of the relationship or that you intend to start a relationship;
- Needs to set out in detail both your and the other party’s financial positions as indicated above;
- Needs to set out in detail what you seek to happen during the course of the relationship and upon the breakdown of the relationship should that eventuate. The provisions should cover the various assets, liabilities and superannuation entitlements, as well as any assets acquired by either or both of you during the course of the relationship;
- Needs to include a certificate from each party’s solicitor annexed to the agreement that the relevant legal advice was provided to that party.
Obtain Independent Legal Advice
If you are hoping to achieve a certain result by way of a financial agreement, then it is obviously important to you that the agreement be “binding”. Therefore it is essential that you obtain independent legal advice from 2 solicitors – one for each party – and that those solicitors each certify the agreement. The agreement will not be supported in the Family Court of Australia if the agreement is not certified by 2 independent solicitors.
Signing
You should both sign the Binding Financial Agreement at the same time and your signatures should be witnessed by an authorised person (JP or solicitor) – you may wish to have the solicitors who advised you to act as authorised witnesses, but it is not essential.
Stamping
Financial Agreements do not attract stamp duty and are not required to be stamped.
Please call AussieLegal on 1300 728 200 for more information on Binding Financial Agreements under Australian lawfor a fixed price of $2,475.00 including legal advice and certification from 2 independent family law solicitors.