Binding Financial Agreements (BFA)

Under the Agreement you generally lose your rights under the Family Law Act 1975 to ask for maintenance, property or maintenance and property orders different from those set out in this Agreement.

This Agreement may be able to be varied or set aside in later court proceedings. For example:
• Circumstances which arise after the Agreement is made, make it impracticable for part or all of the Agreement to be acted on. Section 90K(1)(c) deals with impracticability because of later circumstances.
• If you both agree to vary it and either enter into a new financial agreement or a termination agreement. The agreement can be expressly terminated under s90J or implied as a contractual remedy, eg waiver, estoppel, implied rescission.
• If you do not disclose full and accurate details of your financial position. Section 90K(1)(a) deals with a failure to disclose a ‘‘a material matter’’. Fraud includes ‘‘non-disclosure of a material matter’’ and includes common law and equitable fraud.
• There has been a material change in relation to the circumstances a party to the agreement will suffer hardship if the agreement is not set aside.
• If a party to the agreement engaged in unconscionable conduct. Section 90K(1)(e) deals with unconscionable conduct in the making of the agreement.
• Spousal maintenance may still be able to be claimed despite the Agreement, if at the time the Agreement comes into effect, either party is receiving a government income tested pension.
• Under section 90K(1)(aa) if a purpose of the agreement was to defraud or defeat a creditor or the agreement was entered into with reckless disregard of the creditor’s interests it may be set aside.
• If the agreement is void, voidable or unenforceable, eg by way of a mistake, misrepresentation, public policy, uncertainty, incompleteness, duress, undue influence unconscionability, breach, waiver, estoppel it may be set aside under section 90K(1)(b).
• Default in an obligation causing circumstances which make it just and equitable to vary or set aside the order.
• Please note these are not the only circumstances when a financial agreement can be varied.

A financial agreement may not be your best option for formalizing your agreement as to property and/or spousal maintenance and it is our opinion that Consent Orders for are our recommended option.

Going to Court | Urgent Action | Appeals | Consent Orders | BFA | s75 | s79 | Divorce