Before the right to create Binding Financial Agreements (BFAs) was extended to same-sex and de facto relationships, when such a relationship had broken down, both parties would have had to prepare themselves for some long-winded and tedious litigation through the Supreme Court. Thank goodness, this has now all been changed 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 distribution of property and financial resources once the relationship has broken down.
Effectively, this now places de facto agreements in the same category as is already enjoyed by married couples. It means that same-sex relationships are apportioned with similar rights to heterosexual couples and this will be viewed as a welcome move by many gay rights groups that have been concerned and campaigning over these issues.
How Would You Go About Creating A BFA In These Circumstances?
If a de facto, or same-sex relationship has broken down irretrievably, s.90UD of the 1975 Act sets out that the following procedures would need to be followed in order for a court to recognise and apply a binding financial agreement. These are as follows:
They would need to ensure that both parties seek professional and qualified legal advice. This is imperative and it should help to ensure 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 once 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 fact that this requirement has been satisfied. It would then need to be added as an ‘annex’ to the main written legal document which will make up the BFA.
The BFA will need to specify the extent 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 ensure 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 important to note that a person can only enter into a BFA if they are not already party to such an agreement with another person.
Swifter Resolution at the End of a Relationship
This type of post nuptial agreement should help to ensure 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 agreed upon, the BFA will provide a far quicker resolution to the question of who gets what.
Of course, to a large extent, at the end of any relationship and at a time when communication between both parties may not be as amicable as it once was, a lot will depend on how quickly an agreement can be settled. Nevertheless, it would probably end up being more prudent and cost effective for the parties to resolve the property and financial implications in this way.
Whatever actions the members of a de facto relationship elect to take when things have broken down, the fact remains that Australian law now provides them with these choices. Gone are the days where there was only very limited avenues that could be pursued in order to resolve such issues. Such de facto agreements now exist to realise a swifter resolution to the distribution of property and financial resources.
