Binding Financial Agreements allow couples to oust the jurisdiction of the Federal Circuit and Family Court of Australia to make property adjustment orders, effectively leaving the power to create a plan to deal with assets after separation to the couple themselves.

There are several types of Binding Financial Agreements.This article will briefly describe the main types, and it should be noted that before drafting a Binding Financial Agreement, parties to the agreement should obtain legal advice to determine which type of agreement meets their needs. This also applies to all states in Australia, except for Western Australia, where the sections of the Act may be different.

Types of Binding Financial Agreement

All references to “The Act” are references to the Family Law Act 1975 (Cth) in the below paragraphs.

Financial Agreements Pursuant to Section 90B of the Act.

These agreements are typically used when couples are thinking about getting married, and are what people classically refer to as a “prenup”.

Financial Agreement Pursuant to Section 90C of the Act

These agreements are typically entered into by couples who are married and wish to have a plan in place for if they separate in future.They are also used for married couples who have separated but haven’t divorced –usually when they are awaiting the one-year separation to expire so that they can file for divorce but they do apply married couple who has separated prior to divorce, whether they intend on formally divorcing or not.

Financial Agreement Pursuant to Section 90D of the Act

These agreements are used for couples who have been married,and then have subsequently, divorced.

Part VIIIAB Financial Agreement Pursuant to Section 90UBof the Act

This is for couples who are planning to enter into a de-facto relationship, and don’t want to get married.

Part VIIAB Financial Agreement Pursuant to Section 90UCof the Act

This agreement is for couples who are already in a de-facto relationship, have not separated, and want to plan their property division inthe event of separation.

Part VIIAB Financial Agreement Pursuant to Section 90UDof the Act

This agreement is for de-facto couples who have separated.

There are also agreements that can be entered into for the termination of each of the above agreements, and the sections that those agreements rely on vary in reference to the type of agreement that was made.

There are differences in the drafting of each Binding Financial Agreement, and it is important to seek proper legal advice to ensure that firstly, the type of Binding Financial Agreement is correct, and secondly, the technical requirements of that type of Binding Financial Agreement are fulfilled.

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