Put a binding financial agreement in place
We will document what each of you brought, so a separation does not have to decide it later.A binding financial agreement decides in advance how property would be divided if a relationship ended. It is made under the Family Law Act 1975 (Cth) (the Family Law Act), and it works by taking the question away from a court. That is why the formalities are strict. Each party must have independent legal advice. A defect in the process can make the agreement worthless at the moment it is relied on. Done properly, it is the most effective way to keep inherited money, a family business or pre-relationship assets out of a future dispute.
Made early enough to hold
An agreement produced days before a wedding invites an argument about pressure that an early one does not.
Formalities done exactly
Independent advice and certification are requirements, and a defect in them can make the agreement worthless.
Honest about the limits
Agreements do not deal with children, and we will say what yours cannot do as clearly as what it can.
What is a binding financial agreement, and when does it make sense?
A binding financial agreement is a contract between partners that sets out how their property would be divided if the relationship ended. It can be made before, during or after a relationship. Its effect is to displace the court’s usual discretion, which is what gives it value and also what makes the requirements strict. Both parties must receive independent legal advice about the effect of the agreement and about its advantages and disadvantages, and that advice must be certified. Agreements are most often used where one party brings substantially more into the relationship. They are also used where a family business or an inheritance needs to stay where it is.
Do we each need our own lawyer?
Yes. Independent legal advice for each party is a requirement, not a formality, and one lawyer cannot act for both. The advice has to cover the effect of the agreement and its advantages and disadvantages, and it has to be certified. An agreement without it is vulnerable.
Can an agreement be set aside?
It can, and the usual grounds are about how it was made. A failure to disclose assets, pressure applied close to a wedding, or defective independent advice are the common ones. Agreements made early, with full disclosure and proper advice, are considerably harder to challenge.
Can we deal with the children in it?
No. A binding financial agreement deals with property and can deal with maintenance between the parties. Arrangements for children sit outside it, and a court retains its powers over those questions regardless of what the parties have agreed.
Is it too late if we are already married?
No. Agreements can be made before, during or after a relationship, and one made during a marriage is perfectly valid. What matters is that it is not signed under pressure and that both parties disclose fully. Earlier is safer, but later is far better than not at all.
Have the conversation before it is difficult
Tell us what each of you is bringing and what you want protected. We will tell you whether an agreement is the right instrument and what it would need to say.
Decide it now, while you both still want the same outcome
There is an asset that came from somewhere other than the relationship. An inheritance, a share in a family business, a property owned long before you met. Without an agreement, how that is treated on a separation is a matter for a court’s discretion. It would be applied years from now, to circumstances nobody can predict. An agreement replaces that discretion with something you both decided while you agreed.
- We will establish what you are protecting and whether an agreement is the right instrument.
- We will arrange full disclosure of assets from both sides before anything is drafted.
- We will draft the agreement to deal with what each of you brought and what you build.
- We will make sure the independent advice and certification requirements are properly met.
- We will tell you where an agreement cannot help, so you are not relying on it.
Something came into the relationship that did not come from it
You are moving in together, or getting married, or have been together for years and are now buying something substantial. One of you has an inheritance, an interest in a family business, or a property from before. Your parents may have raised it, which makes the conversation harder rather than easier. Nobody wants to plan for an ending, and the alternative is leaving it to be decided at the worst possible time.
What's included in your agreement
- Advice on whether an agreement suits what you are protecting.
- A full disclosure process for both parties.
- A binding financial agreement drafted for your circumstances.
- Certification of the independent legal advice requirements.
- Advice on timing, so the agreement is not signed under pressure.
- A clear statement of what the agreement does not cover.
Why agreements get set aside
A binding financial agreement is only worth anything if it holds. The ones that fail almost always fail on how they were made rather than on what they say.
The formalities are the first hurdle. Each party must have independent legal advice from their own lawyer, and that advice has to be certified. One lawyer cannot act for both. An agreement signed without genuinely independent advice is vulnerable, regardless of how fair its terms are.
The circumstances of signing matter as much. An agreement produced days before a wedding, when one party is in no practical position to refuse, invites an argument about duress or undue influence. So does a failure to disclose assets, because an agreement reached without both parties knowing what is on the table can be set aside. The safest agreements are the ones made early, disclosed fully, and never presented as a condition of anything.
From an uncomfortable conversation to an agreement that holds
We start with what you are actually trying to protect, because that shapes everything. Keeping an inheritance separate is a different agreement from quarantining a family business or dealing with a property you are about to buy together.
Then we do it properly. Full disclosure from both sides, and drafting that addresses what each of you brought and what you build together. There must be enough time that nobody can later say they were rushed. Your partner gets their own lawyer, which is a requirement rather than a courtesy, and we make sure the certification is in order. We also tell you what an agreement cannot do. They do not deal with children, and a court retains power over those questions regardless of what you sign.
How we put an agreement in place
Start early, disclose fully, and get the formalities exactly right.Establish the goal
We work out what you are actually protecting and whether an agreement is the right instrument.
Disclose and draft
Both parties disclose fully, and we draft terms covering what each brought and what you build.
Sign it safely
We complete the independent advice and certification, with enough time that nobody was rushed.
An agreement made early enough and properly enough to hold
This is one of the few legal documents that is harder to raise than it is to draft. Most people put it off, and the ones who do it early find the conversation much easier than they expected.
Two of our lawyers are full members of the Society of Trust and Estate Practitioners. We are an ISO 9001 accredited practice. We prepare binding financial agreements where inherited money, a family business or pre-relationship assets need to stay where they are. We will tell you plainly if an agreement is being left too late to be safe.
Our great lawyer guarantee
Six principles we hold to, whatever you bring us and however long it takes.
Take the time
We listen carefully to understand what you want to achieve, then step you through the advice and the documents.
Share our knowledge
We pass on as much as we can, so you can make your own informed decisions.
Stick to our knitting
We only do what we are good at, so you never pay for our learning.
Work as one team
Someone is always available to answer your question or point you the right way.
Fair pricing
A fixed or capped quote for advice and documents, so you do not carry the price risk.
It is your show
We are in it for a front row seat to witness your success, not for our egos.
Protect what came from outside the relationship
Tell us what each of you is bringing and what you want kept separate. We will tell you whether an agreement is the right answer and draft it with time to spare.
More on this area of law
Read more about binding financial agreements, asset protection and family business succession, and how ADLV Law can help.
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