Prior to the ability to produce Binding Financial Agreements (BFAs) was extended to same-sex and de facto relationships, when such a relationship had split up, both sides would have had to prepare themselves for some long-winded and laborious litigation through the Supreme Court. Thank goodness, this has now all been altered with the introduction of section 90UD of the Family Law Act 1975 which specifically entitles people in de facto relationships to agree upon what they consider to be a fair division of property and money once the relationship has broken down. Efficiently, this now puts de facto agreements in the same category as is already loved by husbands and wives. It indicates that same-sex relationships are apportioned with the exact same rights to heterosexual couples and this will be observed as a welcome move by many gay rights groups that have been involved and campaigning throughout these challenges.
How Would You Go About Creating A BFA In These Conditions? If a de facto, or same-sex relationship has split up irretrievably, s.90UD of the 1975 Act sets out that the following operations would need to be implemented for a court to determine and apply a binding financial agreement. These are as follows: They would need to make certain that both parties obtain professional and qualified legal advice. This is vital and it should help to make sure that each party’s unique situation is evaluated and legally commented upon. If gross unfairness can be identified within the agreement as it stands, the legal advisor will point this out to the relevant partner and they will then only go ahead and sign after they know exactly what they are agreeing to and/or possibly compromising.
A certificate must be obtained from the applicable legal professional which will attest to the point that this need has been pleased. It would then has to be put in as an ‘annex’ to the main written legal document which will make up the BFA. The BFA will likely need to indicate the level of any relevant spousal maintenance to be provided. It will need to be signed by both people and a copy will be retained by each. Provided all of the steps have been taken above, the court should not scrutinise the BFA to guarantee that it is just and equitable. The court would only tend to set a BFA aside if there were fundamental flaws with the documents (e.g. the BFA had been created in a fraudulent manner). It is also vital that you note that a person can only enter into a BFA if they are not already party to such an agreement with another person.
Swifter Solution by the end of a Relationship: The sort of post nuptial agreement should help to be sure that any financial matters are dealt with far more smoothly than they may otherwise be. Granted, some time would be required on both sides to conceive the binding financial agreement, but once a settlement is decided, the BFA will provide a far quicker decision to the question of who gets what. Of course, to a large degree, by the end of any relationship and at a time when communication between both sides may not be as manageable as it once was, a lot will depend on how quickly an agreement can be satisfied. On the other hand, it would probably turn out to be more prudent and practical for the parties to resolve the property and financial risks in this way.
Whichever actions the members of a de facto relationship tend to take when things have separated, the reality is that Australian law now provides them with these alternatives. Gone are the days where there was only very limited avenues that could be went after in order to settle such concerns. Such de facto agreements now exist to understand a swifter conclusion to the distribution of asset and money.
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