Couple entering into a financial agreement before getting married and building a house.
QUESTION:
My fiance doesn’t want “to waste money” on lawyers to complete a Binding Financial Agreement. He wants us to write our own. I don’t want to spend any more on this than about $2000 and am aware that lawyers can really cost a lot. I think it’s important, however, to at least get some advice for our particular circumstances as there may be things to consider that we’re not even thinking about. Especially as we’re planning to build a house. What’s your advice?
ANSWER:
The purpose of a Binding Financial Agreement is to preclude the ability of the parties to later make a claim for property settlement and/or maintenance in the event of marriage or relationship breakdown.
In order for a BFA to be binding there are certain legal requirements that must be observed. In particular each party to the agreement must receive specific advice from an independent solicitor as to the effect of the agreement on that party’s rights and each solicitor must execute a specific certificate as part of the agreement.
It is therefore not possible to execute a homemade or informal agreement with the same legal effect and protection as a BFA. It is highly unlikely that any solicitor would be prepared to execute the requisite certificate for such an agreement.
The usual basis for such an agreement to be entered into prior to marriage is to protect the financially stronger party from a claim by the other party in the event of marriage breakdown. If that is the case here the panel recommends you at least seek legal advice on your rights before signing any agreement, whether homemade or not.
The Law Society of South Australia (phone 8229 0200 or website lawsocietysa.asn.au) is able to provide you with the names of solicitors who practice in Family Law. You may wish to contact some of these solicitors in order to obtain an indication of cost before proceeding.
It is important you feel confident about joint decisions with your fiance and for these decisions to reflect the sort of relationship you want with each other. If this raises any questions for you, it may be helpful talk with a relationship counsellor available from the services listed below.
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