What property should be included in a Binding Financial Agreement (BFA)?

The interpretation of what constitutes a party’s ‘property’, for Family Law purposes, is very inclusive. Basically, anything with a proprietal interest is property, so that will include property overseas, anything held by a company ultimately controlled by you for your benefit (or share thereof), or held on trust by a third party for your benefit. If you are approaching a legal practice in the hope that they may assist you in drafting a BFA, they will usually take your instructions and provide you with advice on what exactly goes into such an agreement.

It’s always worthwhile doing some preliminary research before you approach a lawyer, as some pre-interview preparation can potentially save you money. This would involve thinking about what you would want to include in the BFA and writing this down before you meet with your legal advisor.

What to discuss with your partner

The types of matters you and your partner may want to address in entering into a BFA either before or during your marriage/de facto relationship may include, naming just a few:

• Whether to combine wages and other income, or keep them separate;
• How you will go about sharing money, and on what basis (weekly, monthly, yearly etc);
• What will be done with any assets that you or your partner already owned prior to the relationship;
• What to do with existing debt you or your partner may be bringing into the relationship;
• How future property will be dealt with. In other words, whether ownership will be based on who contributes what share of the new property, or split 50/50;
• How will any upcoming jointly acquired liabilities be dealt with;
• Who has access to money in joint bank accounts (one of you, or both of you, etc);
• Rent and mortgage responsibilities and who these fall on (for example, are they divided or based on income, etc);
• How you will resolve any payment issues regarding rent and mortgage;
• What level of Superannuation, if any, each partner will be entitled to;
• How property will be shared in the event of a separation;
• Whether each party will be required to pay spousal maintenance, and on what terms;
• How the term (length) or status (de facto or married) of the relationship will impact the division of property if there is a breakdown of the relationship;
• How the birth of a child will affect the above.

Conclusion

A BFA, or “pre-nup”, is an important document for many reasons, and should be discussed in detail with your partner if it is something you believe will benefit the relationship. The importance of having independent legal advice when drafting your BFA cannot be understated and is a legal requirement before the BFA is validly signed.