In the intricate tapestry of legal frameworks governing personal finances and estate planning, two crucial documents often stand at the forefront: Binding Financial Agreements (BFAs) and Wills. While both serve distinct purposes, their intersection can significantly impact individuals’ financial security and estate distribution, particularly in Queensland, Australia.
Table of Contents Understanding Binding Financial AgreementsBinding Financial Agreements, commonly referred to as BFAs, are legal contracts entered into by parties to formalise financial arrangements, especially concerning property, spousal maintenance, and financial resources. In Queensland, BFAs are governed by the Family Law Act 1975 (Cth), providing couples with an avenue to clarify their financial rights and obligations before, during, or after a de facto relationship or marriage. The Role of Wills in Estate PlanningOn the other hand, Wills serve as fundamental documents in estate planning, outlining individuals’ wishes regarding asset distribution, guardianship of dependents, and executor appointments after their demise. In Queensland, Wills are governed by the Succession Act 1981 (Qld), offering individuals the autonomy to designate beneficiaries and mitigate potential disputes among heirs. Interplay between BFAs and WillsWhile BFAs primarily address financial matters during a relationship or following its dissolution, their implications can extend to estate planning, especially concerning property rights and financial settlements. Individuals entering into BFAs should consider their potential impact on testamentary dispositions outlined in their Wills, ensuring alignment between the two documents to avoid conflicts or unintended consequences. In Queensland, BFAs may contain provisions affecting property owned by parties individually or jointly, which could overlap with assets designated in Wills for specific beneficiaries. Additionally, financial agreements pertaining to spousal maintenance or property settlements may influence the distribution of assets stipulated in Wills, necessitating careful coordination between the two instruments to uphold individuals’ intentions. Key Considerations for Individuals
Need Legal HelpLook no further than James Noble Law! We are your dependable Family Law specialists in Cairns, Brisbane, and Milton. Benefit from a complimentary 20-minute consultation with our skilled legal team – no strings attached! Secure your slot now to connect with our seasoned Family Lawyers. Explore: Accomplished Brisbane Family Lawyers. Devoted Cairns Family Lawyers. Proficient Milton Family Lawyers. You may also like to know more about the following: Binding Financial Agreements in De facto relationships – 100% Watertight or Not? Is your binding financial agreement legally binding? Binding Financial Agreements; Will Drafting Essentials You Really Should Know About Why Smart People Agree On Binding Financial Agreements Before Settling Down Binding Financial Agreement; Provisions of Family Law Act Binding Financial Agreement Binding Financial Agreements: Are they worth the paper they are written on? For more information, please visit our website: Binding Financial Agreements and Wills
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In the midst of the excitement and anticipation of planning a wedding, many couples overlook the pragmatic side of their union – finances. While discussions about money may not seem romantic, they are essential for a stable and secure future. In Cairns, Queensland, as in any other part of the world, couples can safeguard their financial interests through pre-nuptial Binding Financial Agreements. Despite misconceptions surrounding “pre-nups”, they offer invaluable benefits that can protect both parties in the event of a separation or divorce. In this blog, we’ll explore the significance and advantages of entering into such agreements before tying the knot in the picturesque city of Cairns.
Understanding Pre-nuptial Binding Financial AgreementsA pre-nuptial Binding Financial Agreement, commonly known as a pre-nup, is a legal contract made between couples before marriage or in the early stages of a relationship, which outlines how assets, liabilities, and financial matters will be handled in the event of a divorce or separation. In Cairns, Queensland, these agreements are governed by the Family Law Act 1975, providing couples with a clear framework to protect their financial interests. The Importance of Pre-nuptial Binding Financial Agreements in CairnsProtection of AssetsCairns is a vibrant city with a growing economy, making it an attractive place for investments and property ownership. For couples entering marriage with significant assets or property, a pre-nuptial agreement can safeguard these assets in case of a relationship breakdown. Without such an agreement, assets acquired during the marriage could be subject to division according to family law principles, potentially leading to disputes and financial losses. Clarity and CertaintyOne of the primary benefits of a pre-nuptial agreement is the clarity it provides regarding financial matters. By outlining each party’s rights and responsibilities in advance, couples can avoid ambiguity and misunderstandings during emotional and stressful times. This clarity fosters open communication and mutual understanding, strengthening the foundation of the relationship. Protecting Family Interests In Cairns, where family businesses, especially rural assests, and inheritances are very prevalent, pre-nuptial agreements play a crucial role in protecting family interests. These agreements can specify the treatment of family assets, ensuring they remain within the family lineage and are not subject to division in the event of a divorce. By preserving family wealth and legacies, pre-nups offer peace of mind to couples and their families. Tailored SolutionsEvery relationship is unique, with its own set of circumstances and priorities. Pre-nuptial agreements allow couples to customise their financial arrangements according to their specific needs and preferences. Whether it involves the division of assets, spousal maintenance, or any other financial matters, couples can negotiate terms that reflect their individual situations, ensuring a fair and equitable outcome for both parties. Simplifying Legal ProceedingsIn the unfortunate event of a divorce or separation, having a pre-nuptial agreement in place can streamline the legal process and reduce the time and cost associated with resolving financial disputes. By clearly defining the rights and obligations of each party, pre-nups minimise the scope for litigation and contentious negotiations, enabling couples to navigate the separation process more smoothly and amicably. Overcoming MisconceptionsDespite their numerous benefits, pre-nuptial agreements often face criticism and misconceptions. Some couples may view them as unromantic or pessimistic, fearing that discussing finances will detract from the joy of planning a wedding. However, approaching financial discussions with honesty and transparency can actually strengthen the bond between couples, fostering trust and mutual respect. Moreover, pre-nups are not just for the wealthy or those anticipating divorce. They are practical tools that offer protection and peace of mind to couples of all backgrounds. Whether it’s safeguarding assets, clarifying financial expectations, or preserving family interests, pre-nuptial agreements serve as proactive measures to secure a couple’s future together. Seeking Professional AdviceDrafting a pre-nuptial agreement requires careful consideration and expert guidance. In Cairns, Queensland, couples can seek the assistance of experienced family law practitioners who specialise in preparing Binding Financial Agreements. These professionals can provide personalised advice, ensuring that the agreement complies with legal requirements and adequately addresses the couple’s needs and concerns. Both partis to a Binding Financial Agreement must obtain independent legal advice prior to entering into an Agreement. In Cairns, Queensland, as in any other part of the world, pre-nuptial Binding Financial Agreements offer couples a practical and effective means of safeguarding their financial interests and securing their future together. By providing clarity, protection, and peace of mind, pre-nups empower couples to approach their marriage with confidence and transparency. While discussions about finances may not be the most romantic aspect of wedding planning, they are undoubtedly essential for building a strong and resilient partnership that can weather any storm. So, before saying “I do” amidst the lush landscapes of Cairns, consider the importance and benefits of a pre-nuptial agreement – because when it comes to love and finances, it’s better to be safe than sorry. Look no further than James Noble Law! We are your dependable Family Law specialists in Cairns, Brisbane, and Milton. Benefit from a complimentary 20-minute consultation with our skilled legal team – no strings attached! Secure your slot now to connect with our seasoned Family Lawyers. Explore: Accomplished Brisbane Family Lawyers. Devoted Cairns Family Lawyers. Proficient Milton Family Lawyers. Locate us effortlessly on Google Maps and take the proactive step towards resolving your legal matters. Seize this opportunity for guidance from our experienced professionals. 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Cairns, located in the heart of North Queensland, Australia, is a region known for its stunning natural beauty, rich cultural diversity, and thriving tourism industry. But like any other region, it’s not immune to the complexities of life, including relationships and finances. In this context, Binding Financial Agreements (BFAs) have gained significant importance in the Cairns region. This article explores why BFAs are essential in this tropical paradise.
What Are Binding Financial Agreements? Binding Financial Agreements, often referred to as ‘pre-nups’ or ‘prenuptial agreements,’ are legally binding contracts between two parties that outline how their financial assets and liabilities will be divided in the event of a relationship breakdown, including divorce or separation. These agreements can be established before, during, or after a marriage or de facto relationship. Why Are BFAs Essential in Cairns? Protecting Business Interests: Cairns boasts a vibrant entrepreneurial spirit with numerous small and medium-sized businesses operating in the region. Entrepreneurs and business owners often enter relationships with substantial assets. BFAs are crucial in protecting their hard-earned business assets, ensuring that a divorce or separation doesn’t jeopardise their enterprises. Preserving Assets in Tourist-Driven Economy: Tourism is the backbone of Cairns’ economy, with many residents investing in the tourism sector. These businesses often involve significant financial assets and intellectual property. A BFA can shield these valuable assets in the event of a relationship breakdown, safeguarding the local economy’s stability. Facilitating Estate Planning: Cairns is home to many retirees and seniors. For individuals with substantial assets, such as property, investments, or inheritances, BFAs play a crucial role in estate planning. A well-drafted BFA ensures that their assets are distributed according to their wishes, protecting their legacy for future generations. Binding Financial Agreements in CairnsMinimising Legal Battles: Cairns, like any other region, experiences its share of relationship breakdowns. Without a BFA in place, the division of assets can become contentious and lead to lengthy legal battles. BFAs provide a clear, predetermined framework for asset division, reducing the emotional and financial strain on all parties involved. Promoting Financial Transparency: In any relationship, transparency is essential. BFAs encourage open and honest communication about financial matters, promoting a healthy financial foundation for couples. This can enhance trust and reduce the risk of disputes down the road. Tailoring to Individual Needs: BFAs can be customised to suit the unique circumstances of each couple. This flexibility allows individuals to address their specific concerns and financial arrangements, making it a versatile tool for anyone, regardless of their financial situation. Navigating De Facto Relationships: In Australia, de facto relationships are treated similarly to marriages when it comes to property division. A well-crafted BFA can provide clarity and protection for both parties, whether they are married or in a de facto relationship. Ensuring Fairness: BFAs are not just about protecting one party’s interests. They aim to ensure fairness for all parties involved. By outlining a fair and reasonable division of assets, BFAs help maintain amicable relations between couples during a challenging time. Conclusion In Cairns, a region known for its breathtaking natural beauty and thriving economy, Binding Financial Agreements have become a crucial tool for safeguarding personal and business assets during relationship breakdowns. Whether you’re a business owner, retiree, or anyone in a committed relationship, BFAs provide peace of mind by promoting financial transparency, fairness, and legal clarity. They offer a practical and responsible way to navigate the complexities of finances in relationships, helping couples enjoy the paradise that is Cairns with confidence and security. Look no further than James Noble Law! We are your dependable Family Law specialists in Cairns, Brisbane, and Milton. Benefit from a complimentary 20-minute consultation with our skilled legal team – no strings attached! Secure your slot now to connect with our seasoned Family Lawyers. Explore: Accomplished Brisbane Family Lawyers. Devoted Cairns Family Lawyers. Proficient Milton Family Lawyers. You may also like to know more about the following: Binding Financial Agreements in De facto relationships – 100% Watertight or Not? Is your binding financial agreement legally binding? Binding Financial Agreements; Will Drafting Essentials You Really Should Know About Why Smart People Agree On Binding Financial Agreements Before Settling Down Binding Financial Agreement; Provisions of Family Law Act Binding Financial Agreement Binding Financial Agreements: Are they worth the paper they are written on? For more information, please visit our website: Binding Financial Agreements Cairns Preparing an Airtight Binding Financial AgreementsBinding Financial Agreements (BFA), also referred to as “pre-nups” are created when two parties have made a fully informed decision to enter into a binding agreement. The creation of an Airtight Binding Financial Agreements requires the parties to disclose their financial position, provide reasonable time to consider the agreement and obtain independent legal representation to avoid any undue influence or pressure on the other party.
This document effectively allocates assets and other financial resources in the event the marriage or relationship ceases. Whilst many people believe planning for divorce before the marriage begins is controversial or otherwise “unromantic”, a BFA is an integral part of prudent estate planning. This document is a mechanism similar to the preparation of a will or enduring power of attorney. Requirements of CreationTo create binding financial agreements, several requirements must be met in accordance with the Family Law Act, including:
If you are planning on having children or have a significant life change coming up in the future, think about how these events will affect the BFA. The requirement of reasonable and fair provisions are also crucial to the legality of the document. If the document features overbearing provisions, causes unnecessary hardship on one party, or is unfair to the non-moneyed spouse, the Court may set aside the BFA. The last consideration, which is perhaps the most important, is the client’s receipt of competent independent legal advice and understanding of what constitutes unreasonable pressure, influence, demand, or conduct. If a person displayed behavior that is unconscionable, is likely to place undue influence or duress on the other party, the Court will usually set aside the agreement. To understand more, and seek clarity on your matter to create an Airtight Binding Financial Agreements please consider a Free 20-minute initial consultation with an experienced family lawyer in Brisbane. If you need any help please contact the Brisbane Family Lawyers team today for a FREE, no-obligation 20-minute consultation. We have Qualified and Experienced Family Lawyers Brisbane at James Noble Law. Find Brisbane family lawyers on Google Maps Near you now. You may like to know more information about the
For more information, please visit our website: Airtight Binding Financial Agreements The law in regard to Binding Financial Agreement in Brisbane is extensive and complex. The law is governed by the provisions in the Family Law Act 1975 (as amended). Similar provisions are provided in the Act for de-facto relationships.
Because it is a complex area of law it is a requirement (as detailed below) that the parties entering into a Binding Financial Agreement must consult a solicitor and obtain legal advice. The relevant law is detailed as follows: LEGISLATIVE PATHWAY 49. Section 71A(1) of the Act provides:- 71A(1) [Matters in financial agreements] This Part does not apply to: (a) financial matters to which a financial agreement that is binding on the parties to the agreement applies; or (b) financial resources to which a financial agreement that is binding on the parties to the agreement applies. 50. Accordingly, property and spousal maintenance orders pursuant to s 79 of the Act are not able to be made if the parties enter into a financial agreement that is binding. 51. The consequence is that the Court does not have power to make orders for settlement of property pursuant to s 79 of the Act. 52. Pursuant to the definition of financial agreement in s 4 of the Act, a financial agreement means: an agreement that is a financial agreement under section 90B, 90C or 90D, but does not include an ante-nuptial or post-nuptial settlement to which section 85A applies. 53. Pursuant to s 4 of the Act, financial matters means:- (a) in relation to the parties to a marriage – matters with respect to: (i) the maintenance of one of the parties; or (ii) the property of those parties or of either of them; or (iii) the maintenance of children of the marriage; or 54. Part VIIIA of the Act provides for the provisions in respect of financial agreements. 55. Section 90B of the Act relates to financial agreements before marriage and provides:- 90B(1) If: (a) people who are contemplating entering into a marriage with each other make a written agreement with respect to any of the matters mentioned in subsection (2); and (aa) at the time of the making of the agreement, the people are not the spouse parties to any other binding agreement (whether made under this section or section 90C or 90D) with respect to any of those matters; and (b) the agreement is expressed to be made under this section; the agreement is a financial agreement. The people may make the financial agreement with one or more other people. 90B(2) The matters referred to in paragraph (1)(a) are the following: (a) how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of the spouse parties at the time when the agreement is made, or at a later time and before divorce, is to be dealt with; (b) the maintenance of either of the spouse parties: (i) during the marriage; or (ii) after divorce; or (iii) both during the marriage and after divorce. 90B(3) A financial agreement made as mentioned in subsection (1) may also contain: (a) matters incidental or ancillary to those mentioned in subsection (2); and (b) other matters. 90B(4) … 56. Section 90G(1) of the Act provides for the circumstances when a financial agreement is binding. The present iteration of s 90G(1) provides:- 90G(1) [Requirements for binding agreement] Subject to subsection (1A), a financial agreement is binding on the parties to the agreement if, and only if: (a) the agreement is signed by all parties; and (b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and (c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and (ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and (d) the agreement has not been terminated and has not been set aside by a court. Note: For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995. 57. Whether a financial agreement is binding is to be considered pursuant to s 90G(1A) and (1B) of the Act which provides:- 90G(1A) [Binding nature of financial agreement] A financial agreement is binding on the parties to the agreement if: (a) the agreement is signed by all parties; and (b) one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and (c) a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and (d) the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and (e) the agreement has not been terminated and has not been set aside by a court. 90G(1B) [Declaration that financial agreement binding] For the purposes of paragraph (1A)(d), a court may make an order declaring that a financial agreement is binding on the parties to the agreement, upon application (the enforcement application) by a spouse party seeking to enforce the agreement. 59. Section 90G was inserted by Schedule 2 of the Family Law Amendment Act 2000 (Cth) and provided:- (1) A financial agreement is binding on the parties to the agreement if, and only if:- (a) the agreement is signed by both parties; and (b) the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters: (i) the effect of the agreement on the rights of that party; (ii) whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of the party to make the agreement; (iii) whether or not, at that time, it was prudent for that party to make the agreement; (iv) whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable; and (c) the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and (d) the agreement has not been terminated and has not been set aside by a court; and (e) after the agreement is signed, the original agreement is given to one of the parties and a copy is given to the other. Note: For the manner in which the contents of a financial agreement may be provided, see s 48 of the Evidence Act 1995. (2) A court may make such orders for the enforcement of a financial agreement that is binding on the parties to the agreement as it thinks necessary. 60. The Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009 (Cth) (“amending legislation”) introduced retrospective amendments with application to the provisions of the Act dealing with financial agreements, in particular s 90G. 61. The explanatory memorandum to the amending legislation in support of the amendments states as follows:- Schedule 5 to the Bill amends binding financial agreement and termination agreement provisions of the Family Law Act 1975 to relax certain technical requirements that must be strictly satisfied for financial agreements and termination agreements to be binding. These amendments will respond to the concerns about the binding financial agreement provisions of the Act that have arisen following the decision of the Full Family Court in Black v Black. The Family Law Council has confirmed that amendments are required to restore confidence in the binding nature of these agreements.[3] 62. Schedule 5 pt 1 item 8 of the amending legislation provides for the retrospective application of the amendments to financial agreements made on or after 27 December 2000. Subitems 8(6) and 8(7) provide as follows:- (6) For a financial agreement made before the commencement of this item, paragraphs 90G(1)(c) and (ca) of the Family Law Act 1975, as inserted by item 2 of this Schedule, do not apply. (7) For a financial agreement made before the commencement of this item, paragraph 90G(1A)(b) of the Family Law Act 1975, as inserted by item 4A of this Schedule, does not apply and the following paragraph 90G(1A)(b) of that Act is taken to have been inserted by that item and to apply instead; (b) paragraph (1)(b) is not satisfied in relation to the agreement; and … … 63. The amending legislation provides for further transitional provisions in item 8A applicable to agreements made on or after 14 January 2004 and before the commencement of the amending legislation on 4 January 2010. The following transitional provisions apply:-[4] (1) Subitems (2) and (3) apply in relation to a financial agreement made on or after 14 January 2004 and before the commencement of this item. (2) Paragraph 90G(1)(b) of the Family Law Act 1975, as in force during that period, is also taken to be satisfied in relation to a spouse in relation to the agreement if, before signing the agreement, the spouse party was provided with independent legal advice from a legal practitioner about: (a) the effect of the agreement on the rights of that party; and (b) whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement; and (c) whether or not, at that time, it was prudent for that party to make the agreement; and (d) whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable. (3) Paragraph 90G(1)(c) of the Family Law Act 1975, as inserted by this Act, applies in relation to the agreement as if the reference in that paragraph to the advice referred to in paragraph (b) included a reference to the advice referred to in subitem (2) of this item. … 64. In Senior & Anderson [2011] FamCAFC 129; (2011) FLC 93-470 Murphy J considered the intended purpose of the amending legislation as follows at 85,730:- 178. It can be seen that, by Item 8(1), amendments made by the Amending Act apply in relation to “[all] financial agreements…made on or after 27 December 2000”. That retrospective application would, on its own, provide a foundation for numerous actions that would seek to “cure” non-compliance with the mandatory requirements of s 90G in respect of all financial agreements made pursuant to the Act. In order to prevent that occurring, the broad retrospective application provided for in Item 8(1) is qualified by the succeeding sub-parts. 65. His Honour then considered that the provisions of item 8A, by reference to the supplementary explanatory memorandum to the amending legislation, were to give effect to “similar purposes”:- 181. The Supplementary Explanatory Memorandum to the Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 (Cth) circulated by the Attorney General provides: 22. The amendment inserts new item 8A into Part 1 of Schedule 5 to the Bill which will provide for additional circumstances in which a financial and termination agreement made on or after 14 January 2004 and before 66. at 85,732 [189] of the judgment:- “90G When financial agreements are binding (1) Subject to subsection (1A), a financial agreement is binding on the parties to the agreement if, and only if: (a) the agreement is signed by all parties; and (b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; OR before signing the agreement, the spouse party was provided with independent legal advice from a legal practitioner about:
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Binding Financial Agreement to be legally bindingThere are certain requirements that must be adhered to for a Binding Financial Agreement to be legally binding. If these requirements are not adhered to, the Agreement may not be upheld in the future if challenged. Here are some things to consider: Did you receive adequate legal advice?In the decision of Hoult & Hoult [2013] FamCAFC 109, the parties entered into a Financial Agreement before they were married. The Judge ruled that the Agreement was not binding because the signed certificate of legal advice did not prove that the wife had received adequate advice, and the wife’s solicitor had not provided a written letter of advice, nor kept a written record of the advice which was given to the wife. Did you disclose all your assets prior to entering the Agreement?In Adame & Adame [2014] FCCA 42, the Agreement was not upheld on the basis the husband failed to disclose his real estate in the United States and certain bank accounts. Unsurprisingly, this failure was also deemed to be a misrepresentation. Has your Agreement been made pursuant to the right Family Law section?The Husband and Wife in Sullivan & Sullivan [2011] FamCA 752 entered into a section 90B Agreement four days after they married. A section 90B Agreement is for people who are contemplating marriage. Therefore, the Agreement should have been described as a section 90C Agreement, which is for parties to a marriage. The Court held that there was no Agreement. Have your circumstances changed?In the recent decision of Guild & Stasiuk [2020] FamCA 348, the parties entered into an Agreement prior to the wedding. The Wife sought to set aside the Agreement on the basis she had primary care of the children and that this was not anticipated at the time of making the Agreement. The Court ruled in the Wife’s favour stating this was a material change in circumstances and the mere fact that the Agreement contemplated the births of the children was not determinative. If you are having doubts as to whether or not your Financial Agreement is binding, contact the Brisbane family lawyers team at James Noble Law to book a 20-minute free consultation. no-obligation 20-minute consultation. We have Qualified and Experienced Family Lawyers Brisbane at James Noble Law. Find Brisbane family lawyers on Google Maps near you. You may like to know more information about the
Spousal maintenance is often confused or likened to Child Support, however, these concepts are unique and very different from the other. Spousal maintenance, unlike Child Support, relates only to the support of your former partner. Click to get a clear concept about Spouse maintenance.
You may have a responsibility to financially support your ex-partner after separation or divorce. In Queensland, de facto partners may well have no right to maintenance if they separated before 01 March 2009. New legislation since this time means that this is not the case if you separated after this date. Your future needs can now be considered when property and other assets are divided. In most cases, it should be remembered that the Court requires you to make an effort to resolve disputes before you initiate proceedings with the Family Court. This generally involves the parties attended a dispute resolution session with a trained professional. We can assist with dispute resolution services. If you cannot agree, you can apply to the Court for a financial order. Spouses Have A Duty Under the Family Law Act 1975, both spouses have a duty to support and maintain the other, even after you have separated or divorced. For a Court to make an Order that one spouse financially supports the other for a period of time the following factors need to be weighed:
Spousal Maintenance Rights Upon Separation Or Divorce Importantly, a party of the relationship or marriage does not have an automatic right to spousal maintenance upon separation or divorce. Whether spousal maintenance can be successfully brought depends upon the individual factors of each case, the financial capability of both parties, and the evidence of your claim before the Court. In order to substantiate your claim for Spousal Maintenance, the Court should be provided with evidence such as:
In cases where one party has taken a substantially more active role in parenting the child of the relationship, and that child is now past the age of 18 and no longer requires full-time care, it can be difficult for parties to suffer a breakdown of the relationship at this time. It is not uncommon for Mother to leave their chosen career for 20-30 years whilst the Husband has spent that time not only supporting the family financially, but also building reputation and expertise in that area of work. In situations such as these, the Husband has a significantly higher earning capacity moving forward whereas the Wife may struggle to re-establish herself in the workforce. Whilst it is not uncommon for the Wife to receive an additional percentage of the property to compensate for this, in circumstances where the assets of the parties are modest, this amount may not be enough to allow the Wife to live comfortably for the remainder of her life. One of the biggest problems with Spousal Maintenance under the Family Law Act is that it does not consider important factors such as:
The court has the power to find any circumstance or fact relevant to the situation. Generally, situations, where one party remains in the care of a child of the marriage, is unable to gain employment due to age or incapacity, or lacks the financial resources to support themselves will result in an order for spousal maintenance. It is important to understand the best interests of the child are not concrete. Discussions and decisions regarding the parenting arrangement of the child need to be flexible. As a result, you should be prepared to compromise to positively engage with this process. The Family Law Act 1975 (Cth) provides the primary considerations to ensure the best interests are met by:
An application for spousal maintenance may be initiated at any time within one year from the date the divorce was finalized. If you wish to make an application outside this time limitation, special permission will be needed from the court to hear the matter. As this permission is not always granted, it is important to bring applications within the required time. Spousal maintenance will automatically cease if the recipient of the order remarries, or if either party of the maintenance dies. However, the party paying the maintenance may make an application to the court for a reduction or termination of the order if the financial circumstances are adversely affected. This process can occur if the payer loses their current employment, or, the recipient of the maintenance has sufficient earnings through employment. If you are party to a family law dispute, you have a duty to disclose to the court certain relevant information, whether the matter is financial or parenting related. This duty to disclose is required throughout the case, from the time before the proceedings reach court up until final orders are given. It is important to understand this duty, as failure to disclose could lead to lengthy delays, additional costs, and even fines. There is a wide range of information you must disclose in financial matters, including:
As the duty of disclosure can expand over numerous documents, it is important to understand the requirements of your specific case. If you fail to comply with the duty of disclosure or file false documentation misrepresenting your true position, the consequences can be severe. The Court may refuse you to use the false information as evidence, dismiss all or part of your case, assume your interest in any property or enforce you to pay additional costs. If there is any evidence indicating you have intentionally hidden documentation, the Court may use discretion to make an adverse finding against your position. If you reasonably suspect the opposing party has failed to full disclosure their position, an application can be made to the Family Law Court for an order to compel the other party’s disclosure. The court has wide powers when determining a Spousal Maintenance Application. The Order the Court can make include: · A payment of weekly, monthly or yearly Spousal Maintenance payments; · A lump sum amount to be paid; or · An Order that a property or asset be transferred to one party as a Spousal Maintenance payment. Importantly, it is not necessary for the party applying for a Court Orders to exhaust all savings and assets before being entitled to spousal maintenance. This was supported in the cases of Bevan (1995) FLC 92-600 and Mitchell (1995) FLC 92-601, where the Court stated, “The days are long gone when it is necessary for an Applicant to use up all her assets and capital in order to satisfy the requirement that she is unable to support herself “adequately”. Where the line is to be drawn will depend on the circumstances of individual cases”. A further interesting decision of the Court was made in the case of Woodgate [2014] FCCA 2419, where the Husband was a Police Officer who had been injured on duty, receiving a benefit for this until his pension activated. The Wife brought an application that the Husband was able to pay spousal maintenance from those funds. Judge Henderson considered the 28-year relationship of the parties and the Husband’s superannuation benefit of almost $1,000,000 in conjunction with the relatively low asset pool. The Husband’s injury was categorized as a “deteriorating mental, psychological and emotional health caused by the stress of his job”. Counsel for the Husband submitted arguments to the Court which suggested the duty pension was a personal injury claim and the Wife had only a 30% in that assets. Counsel for the Husband relied upon the decisions of Hayton &Bendle [2010] FamCA 592, T & T (Pension Splitting) [2006] FamCA 207, and Crawford & Crawford [2012] FMCAfam 1315. The Court found that the Wife did have an entitlement to Spousal Maintenance due to the Husband receiving this pension. As the lump sum totaled approximately $3,320, the Husband had the capacity to pay an amount from this to the Wife. This is another example of the different approach Courts take to specific matters. There is no “one application fits all” category of Spousal Maintenance, with the Court ultimately considering the factors set out in section 75(2) of the Family Law Act 1975 (Cth) in conjunction with the application. Another recent case considered by the Court involved an Application brought by a Mother for spousal maintenance of $100.00 per week. The child of the relationship was almost 5 years old and had not yet commenced primary school education. The Father was employed with a company utilizing an unstructured roster, which made it difficult for the Mother to arrange a regular routine for the child. The Father contended that the Mother was fit and able to gain meaningful employment and the parties’ incomes were virtually equal. Although the Court found that the parties’ incomes were practically equal, the Court considered the fact the Mother has primary care of the child important towards the Spousal Maintenance claim. The Court accepted that the Mother was unable to obtain employment due to the young age of the child, and therefore justified an amount of maintenance being paid to her until the child commenced school. As the Father’s financial statements provided his weekly expenditure at $866 per week with a weekly income of $1,100, the Court has the capacity to pay the maintenance amount of $100 per week. Accordingly, the Father was Ordered to pay the Mother Spousal Maintenance in the sum of $120 per week until such time the child commenced primary school education or turned 6 years of age, which occurred first. The limitation period for commencing a spousal maintenance application is one year from the date on which the divorce became final pursuant to section 44(3) of the Family Law Act 1975 (Cth). If a former de facto spouse is to make an application to the Court, they must do so within two years from the date the relationship ended. If this time period has elapsed, the Court still has the discretion to hear an application, if the Applicant can show that not hearing the case would cause hardship to them or a child. The only way to revoke or alter an Order for Spousal Maintenance is to make an application to the Court which seeks the variation of this Court document. In circumstances where a party may lose their job, the party receiving the benefit has access to a significant wealth or enters into a new matrimonial relationship with another, this may result in unfairness. In circumstances such as these, it is best for the parties to agree to vary the existing Order without the involvement of the Court. In circumstances where the parties are unable to agree, the Court has a wide discretion in it’s decision to either vary, suspend, terminate or continue the Order. The only way a party can extinguish a future Spousal Maintenance claim is to enter into a binding financial agreement (BFA). These binding agreements fall outside the jurisdiction of the Court, acting a private agreement between the parties that are enforceable and willingly entered into. For more information, please visit the main article source: Spousal Maintenance What is Binding Financial Agreements?
A Binding Financial Agreement is a private contract between two parties in which they are effectively finalising property settlement and spousal maintenance issues outside of the Court. Binding Financial Agreements can be entered into:
Further, while an Application for Consent Orders can finalise a property settlement, such Application cannot finalise spousal maintenance issues. It is therefore common to see parties enter into a Binding Financial Agreement to finalise their property settlement and spousal maintenance issues once and for all as the document can serve a dual purpose. To learn more about Binding Financial Agreements and if this document could be useful for your particular situation, contact the team of Brisbane Family Lawyers at James Noble Law today to schedule a free, no-obligation 20-minute consultation. If you need any help, please contact the team at James Noble Law for a FREE 20-minute consultation today to schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you.You may also like to know more information about the
For more information, please visit the main article source: Binding Financial Agreement Are binding financial agreements help to improve Relations between two Parties in Australia?
The answer is yes! Well if they are done properly anyway. It is a common misconception that Binding Financial Agreements / Prenuptial Agreements are simple contracts between two people that must be followed when the agreement comes into effect. It is widely believed that all that is required for a written agreement to binding two parties to a relationship is that a lawyer witness the party's signature and reads the agreement and advises on what it means to each party. Neither of these beliefs is correct for the Binding Financial Agreements. Firstly, as Binding Financial Agreements relates to parties to a personal relationship other factors need to be considered as would be considered under Australian family law. Normal contracts of a similar nature rely on the commerciality of the relationship. Family agreements need to take into account all of the contributions of each party to a relationship and the future of the parties (especially in relation to how the relationship may affect a party’s ability to support themselves in the future, especially when the care of children needs to be considered.) So what needs to happen to make Binding Financial Agreements hold up to challenge in court later on. What is needed to make them watertight? The short answer is ‘properly written advice‘. The longer answer is obtaining from and providing each party (from separate lawyers) the following:
That is the easy part. Because a party needs full advice in this day and age the party needs to know what would happen if the agreement didn’t exist and the parties were subject to Australian Family Law principles. So the following is needed:
This will then allow the lawyer to certify that the proper independent legal advice has been provided to the client. This is where much of the time cost arises. Actually, James Noble Law does the same. The Binding Financial Agreements will then need to be expertly drafted to encompass all aspects of the agreement and any contingencies that may arise in the future. This is where the time cost and certainty are built into the agreement. So with this in mind, it is possible to find a lawyer who will give “independent legal advice” on the cheap however if challenged in Court the agreement will almost certainly be overturned and it won’t have been worth the paper it was written on. Find a competent Lawyer and expect that from start to finish each party will probably part with $4,000 for the proper service (for basic agreements) but if you have family trusts and a complex company structure expect to pay a lot more for a Binding Financial Agreements that is WORTH THE PAPER IT IS WRITTEN ON! Article Source: Binding Financial Agreements Binding Financial Agreement & Provisions of Family Law Act
While binding financial agreement, Parties may wish to determine the ownership of their assets and liabilities whilst contemplating or living in a relationship (including same-sex relationships), contemplating entering into a marriage, during a marriage or after a divorce, may wish to set out terms in an agreement which determines how their property and liabilities should be determined should their relationship break down. Provisions in relation to Binding Financial Agreement came into effect in the Family Law Act in 2000. Defacto Financial Agreement came into effect in the Family Law Act in 2008. Binding Financial Agreements are dealt with in Sections 90 B, 90 C, and 90 D of the Family Law Act 1975. These relate to marriage. The relevant provisions which are similar in nature for a de facto relationship (same-sex relationship) are in Sections 90 UB, 90 UC, and 90 UD. There is a requirement in regard to all Financial Agreements that they are in writing. Agreements pursuant to Section 90 B relate to parties contemplating marriage. Section 90 C relates to spousal parties during marriage before a divorce had been granted and after separation in their relationship. Section 90 D relates to parties to a marriage after a divorce order has been made. Financial Agreement set out “how, in the event of the breakdown of the marriage, the property and financial resources of either or both parties are to be dealt with.” In the case of 90 D, how the property acquired during the marriage should be dealt with? Sections 90 B and 90 C also allow for provision for maintenance during marriage and or after divorce. Financial Agreements do not have any force or effect until there is a breakdown in the marriage or after a divorce in the marriage in the case of Section 90 D. In the case of all provisions of the Family Law Act where maintenance is specified the provisions must specify the party or children for whom the maintenance is to be provided and the amount provided, or the value attributed to the party and or children for maintenance. However, maintenance provisions in Financial Agreement can be set aside by the Court if the Court is satisfied that when the agreement came into effect (that is at the time of separation or after divorce) a party to the agreement, taking into account the terms and conditions of the agreement, is unable to support him or herself with out an income-tested pension, benefit or allowance. It is a requirement in all Financial Agreements that the parties receive advice before signing the agreement as to the effect of the agreement on their rights and on the advantages and disadvantages to each party at the time the advice was provided of entering into the agreement. Legal practitioners are required to sign a certificate in each agreement stating that the required legal advice was given to their client. Advice to a client entering into a financial agreement takes into account the following provisions of the Family Law Act FAMILY LAW ACT 1975 - SECT 72 FAMILY LAW ACT 1975 - SECT 74 FAMILY LAW ACT 1975 - SECT 75 FAMILY LAW ACT 1975 - SECT 90 FAMILY LAW ACT 1975 - SECT 90A FAMILY LAW ACT 1975 - SECT 90B FAMILY LAW ACT 1975 - SECT 90C FAMILY LAW ACT 1975 - SECT 90E FAMILY LAW ACT 1975 - SECT 90F FAMILY LAW ACT 1975 - SECT 90G FAMILY LAW ACT 1975 - SECT 90H FAMILY LAW ACT 1975 - SECT 90J FAMILY LAW ACT 1975 - SECT 90K FAMILY LAW ACT 1975 - SECT 90KA FAMILY LAW ACT 1975 - SECT 90L Article Source: Binding Financial Agreement |
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