While Consent Orders are the usual documents prepared for formalising and finalising matrimonial or de facto property settlements, there are occasions when family lawyers prepare Binding Financial Agreement documents to settle the matter instead.
A Binding Financial Agreement (BFA / Financial Agreement) is a document that reflects the agreement between the parties.
A BFA can be entered into before, during, or after, a de facto relationship or a marriage.
It is necessary for each party to have independent legal advice (ie, each party needs to engage and be advised by his/her own solicitor) if using a Financial Agreement to formalise a property settlement. Each solicitor involved in preparing the Agreement must provide independent legal advice to his/her client as to:
- the effect of the Agreement on the rights of his/her client, and
- the advantages and disadvantages of the client making the Agreement.
Each party must receive a statement signed by the solicitor as to the solicitor having given independent legal advice. This statement is usually annexed to the Agreement.
Financial Agreements are not filed in the Court.
Full and frank disclosure as to each party’s assets and liabilities is a requisite for entering into a Financial Agreement. A schedule of assets and liabilities forms part of the Agreement document.
There are times when a Binding Financial Agreement is preferred over Consent Orders (eg: time constraints), and your family lawyer will give advice as to which method of finalising property matters best suits your circumstances.