Advertising feature
When relationships end, the emotional battles can be hard enough without adding financial arguments into the mix.
Working out who should get what, how much each of you contributed and what you should be entitled to doesn’t help to heal the wounds.
Ideally you want to stay away from the court system. Apart from the extra stress, time and money involved, settling out of court means you will know exactly what each of you will get, whereas by going to court there is the uncertainty of waiting for a judicial officer to decide for you.
Plus, according to the Attorney-General, there are more than 20,000 family law matters awaiting resolution before the courts and the median time taken to reach trial in the Family Court is 17 months.
A workable option is to arrange for a Binding Financial Agreement (BFA).
Courtney Mitchelson, a solicitor with Benjamin & Robinson Lawyers in South Hurstville, said a BFA can be a useful document.
“Most people think of prenuptial agreements, but the legislation allows for BFAs to be made at almost any stage of a relationship,” she said.
“And it is not just for one particular use. For example if parties agree the agreement can be tailored to cover some assets but not others, such as if one of the parties has an interest in a particular asset you could have an agreement that excludes that asset from the court’s jurisdiction should the parties separate. The content of the BFA depends on what each person’s goals are.”
While a BFA does not replace the need for a will (which obviously only comes into force when you die), Ms Mitchelson said she has seen them used as an estate planning tool, especially in the case of blended families.
A BFA can be contested in court however. “For example in a recent case the BFA was set aside due to undue influence or unconscionable conduct. In that case it was found that the document was signed very close to the wedding and one party didn’t have time to fully consider the implications,” Ms Mitchelson said.
“That’s why it is so important that the documents are crafted properly. Start the discussion very early with a solicitor – each party needs to have independent legal advice from solicitors – and the solicitor should be at a firm that has experience in family law matters.”
A BFA can be written at any point in a relationship:
- before cohabitation; during a de facto relationship
- pre nuptial agreement (before marriage)
- post nuptial agreement (during marriage)
- after separation (there are different agreements for de facto and married)
- after divorce.
They can specify details such as:
- how joint income will be used
- who will pay what bills
- what happens with joint property
- what happens with debt
- who will get the pets, and
- assets brought into the relationship.
“The Family Court is expensive and time consuming, so this is an option worth considering in the right circumstances,” Ms Mitchelson said.
- This advertising feature was supported by Benjamin & Robinson Lawyers. Click the link to learn more.