We're Open for you Mackay! Talk to us if you need legal assistance during the Coronavirus crisis
04
Jan

What Is A Binding Financial Agreement?

The binding financial agreement offer is a commitment before the acquisition of a company. Therefore, the binding financial agreement is the step before signing a sales contract, and it will be necessary to collect the required conditions of the operation.

The master lines of the agreement will be reflected in the binding offer document. What is sought through this type of agreement is to unite the wills of those who want to buy the company and those who intend to sell it. It is prevalent to hire experts to assess the company before signing the binding financial agreement Australia.

Characteristic elements of the binding financial agreement 

Three fundamental features make up the binding financial agreement Qld:

  • All points of the agreement must be sufficiently specific. Thus, the seller’s acceptance will be sufficient to carry out the contract.
  • The seller’s commitment to be bound must be expressly indicated if the buyer gives his consent.
  • It must be addressed to the seller.

What is a Binding Financial Agreement?

A Binding Financial Agreement (BFA) is a written agreement, which complies with Part VIII of the Family Law Act 1975 (“the act”). A Binding Financial agreement QLD can be entered into by a married couple or by two people who plan to be married in the future (in the latter case, the agreement is often referred to as a “prenuptial agreement” or “prenup”).

While the primary effect of the agreements is to prevent either party from making an application to the Family Court for the division of property, The aim of introducing Binding Financial Agreements is to encourage couples to agree about how exactly their marital property should be distributed in the event of or the following separation’. This can be very reassuring if you have previously been through the breakdown of a marriage before.

Binding Financial Agreements Australia follows the life cycle of a relationship and may be entered into at four separate times:

Binding Financial Agreement document-

  •  Before marriage (Pre Nuptial according to section 90B);
  •  During the marriage (post-Nuptial according to section 90C);
  •  During marriage in contemplation of separation (separation pursuant to section 90C); and
  •  After separation (section 90d).

The popularity of Binding Financial Agreements shows women and men are taking more financial and legal precautions against a relationship breakdown. Most see it as a form of insurance — a legally binding safety net that they hope never to need.

Many people are marrying the second time around, with assets or kids from a first marriage, like the security of a pre-nuptial. If you didn’t get around making one, or if circumstances have changed, couples already married may also make a postnuptial financial agreement. You may even be divorced and find yourself in a situation where you need the certainty of outcome that a Binding Financial Agreement provides.

Your BFA can deal with finances, superannuation, maintenance, property transfers, and debt of the parties, among other things, or you may choose to deal with only one of these issues. Remember BFA is intended to be used at any time during the life cycle of a relationship.

Is Binding Financial Agreements going to prevent any future court action?

The Agreement will decrease the chance of needing to go to court; however, you can never eliminate access to the Court, regardless of how your agreement is worded. If one party hides a vital fact, the other party can always go back to court, and it is up to the court whether it intervenes and overturns the agreement.

One might think that a binding financial agreement needs to be fair to both parties, but this is not necessarily the way. Should your agreement come before a court, the courts will not dismiss or set an agreement aside merely because it favours one party over the other. This is because section 90G of the Family Law Act requires both parties to receive independent legal advice before signing the agreement. This process ensures that both parties understand the advantages and disadvantages, financially or otherwise, of signing the contract. It stops either party from going to court with the excuse that they didn’t know what they were signing at the time.

When you’re able to sit down with your partner to sort out what your agreement needs to achieve before deciding to both run of to the lawyers, it will save you considerable time, money, and anxiety. Our kit provides all the information you need to draft a professional agreement before your first meeting. This will not only save your legal advisers time as well, and that means your costs should be reduced significantly

What is property?

Most couples have some idea of what is classed as property. Still, there are also some common misconceptions about what is considered the ‘property of the relationship’ when negotiating a property agreement.

All assets (things you own) held by you and your former partner in joint or separate names such as:

  • Family home
  • Holiday home
  • Cars and boats
  • Household effects from stereos to cups and saucers
  • Personal items like jewellery and clothing.

All assets under your own or your former partner’s control, such as:

  • A business
  • Superannuation
  • A share in an extended family business or investment property 
  • Held under a family trust.

All liabilities (things that you owe money on) in joint or separate names such as:

  • Mortgage debts
  • Credit cards
  • Hire purchase agreements.

It may also include property you held in your name before entering into the relationship, or stuff you have acquired since separation.

How is a binding financial agreement made?

For a business sale process, it will be advisable to have as many potential buyers as possible. Once the interested parties are gathered, a restricted auction will be held. The interested parties will then propose binding offers.

Potential buyers must sign a confidentiality agreement and formulate their proposals. Later, the seller would send a summary with the information of the most critical data of the company. This will be the moment in which the experts proceed to verify the value of the company and the legal conditions of the operation, that is, what is also known as due diligence.

After the audit, the seller will decide whether or not to make offers to acquire the company.

The primary content of the binding financial agreement:

  • Some of the elements that such offer must include are the following:
  • We are identifying the data of the buyer.
  • Price, form, and date of payment.
  • Taxes associated with the operation.
  • Offer validity deadline.
  • Data Protection.

To be binding, BFA’s must comply with strict legal requirements which Court Consent Orders do not. In addition to this, BFA’s will not be binding where: 

  • There was fraud or dishonesty; 
  • One of the parties acted unconscionably or  unfairly; 
  • There is a significant change in the children’s care and welfare; 
  • Each party did not receive independent 
  • Legal advice and have their lawyer sign the 
  • BFA to confirm that this advice was given. 

Binding Financial Agreements: Do the Reforms Make any Difference? 

From its enactment in 1975 and for 25 years after that, the Family Law Act 1975 (Cth)(“the Act”) made no provision for the recognition and enforcement of agreements made by parties to marriage outside the requirements of s.79 of the Act1 or s.86 and s.87.2.dealing with financial contracts.

For the first time, married parties could enter into binding agreements that disposed of their property and other rights without the need for a court to determine whether the agreement’s provisions were just and equitable. 

Valid arguments could be raised both for and against the reforms. On the one hand, in favour of allowing parties to make their agreements, it may be said that this is cognate with the usual freedom to contract that marks our commercial law; that it is also appropriate for parties to achieve certainty either before, during, or after their marriage (or de facto relationship) when a comprehensive agreement can establish such. 

On the other hand, it may be that financial agreements, particularly those entered into before marriage (or de facto relationship), will be drawn to entrench the position of the more powerful party and make permanent an inequality and inequity that would otherwise be remedied by an alteration of property interests under s.79 of the Act.

The following paragraph 90G(1)(b) of the Act is taken to apply about financial agreements, as set out here: 

 (i) The effect of the agreement on the rights of that party; 

 (ii) Whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement;

(iii) Whether or not, at that time, it was prudent for that party to make the agreement;

(iv) Whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable;

The timing of the agreement:

Not including termination agreements under s90J(1)(b), the Part VIIA agreements are as follows (including subsequent agreements terminating such contracts under s90J(1)(a)):

  1. s90B: Financial agreement before marriage;
  2. s90C: Financial agreement during the marriage; and
  3. s90D: Financial agreement after the divorce order is made.

Note that the critical timing element here is marriage, not cohabitation. Accordingly, s90C financial agreements can apply both before and after separation, and s90D contracts can only be made after the making of a divorce order. Also, note that about s90B agreements, the expression ‘pre-nuptial agreement’ is not used, although this is a famous standard description of these agreements.

Why have a Financial Agreement?

In a paper he presented to the 9th National Family Law Conference in Sydney in 20004, Ian Kennedy identified the following five reasons why many currently, or intending, married or cohabiting couples may have a strong desire to contract between themselves about their financial affairs: 

  1.  The wish to have the capacity to make their arrangements for ownership and management of their property and financial resources during or at the end of their relationship; 
  2.  A desire for increased certainty if the relationship comes to an end; 

iii) The avoidance of conflict between them with financial matters, both during and after the relationship; 

  1.  The release of the expense, uncertainty, and delay of litigation; 
  2.  The ability to protect assets held before the relationship’s commencement- or acquired during it by inheritance or otherwise – through specific individual means independent of the relationship.

Furthermore, for married couples, Kennedy noted that self-regulation might be critical in a range of circumstances: 

  1.  In second or subsequent marriages for the protection of prior assets for the benefit of children of previous marriages;
  2.  For the preservation of multi-generational farming properties or long-established family businesses; 

iii) Where there is a vast disparity in the wealth of the parties(or the anticipated wealth of one of them by way of eventual inheritance); 

  1.  For persons from cultural backgrounds where marriage agreements are commonly accepted practice; 
  2.  To avoid family disputes on the death of a party to a second or subsequent marriage.

Why a Binding Financial Agreement(‘BFA’)?

Leaving aside the problems of form, content, and enforceability that will be dealt with below, there are several good reasons why parties might be attracted to the idea of using a BFA. Perhaps the most apparent reason was referred to in the explanatory memorandum to the Family Law Amendment Bill 1999 (Cth):

Under the Act, people can make ‘pre-nuptial’ and ‘post-nuptial’ settlements about their properties. In recent years the use of these has been limited because they are not binding, and the court can exercise its discretion over the property with which these settlements deal.

Particularly for people entering into second marriages or de facto relationships, or relationships where one party has significantly greater economic resources than the other, there is often a desire to protect those resources from, say, an order under s79 of the FLA in the event of a breakdown of the relationship, whether to preserve them for the children of a previous relationship or otherwise.

Besides, some parties are keen to find a means of settling their end-of-relationship financial matters entirely outside the supervisory jurisdiction of the Court. BFAs address this need, as they are potentially binding3 without the need to be registered with the Court or contained within Court-approved consent orders.

When to use a BFA and When to get a Court order?

Because of the increased certainty of Court Consent Orders, they are generally the preferable option. Consent Orders are also the only option available if either you or your former partner do not wish to obtain independent legal advice. 

On the other hand, a BFA may be preferred where there is the possibility that the terms of the property settlement are not “just and equitable.” If a property settlement is not “just and equitable,” a Court will not make it into an Order. However, a BFA that is not ‘just and equitable’ can be entered into and can be held to be binding. While this may make BFA’s attractive, it is also why it is crucial to obtain and carefully consider independent legal advice before entering into a BFA. 

Another reason why a BFA may be preferred is where parties do not wish to submit their complete financial and parenting information to the Court system. With a BFA, only the parties’ lawyers need to view and retain this information.

The involvement of third parties:

The Family Law (De Facto Financial Matters and Other Measures) Act 2008 introduced changes to the Part VIIA provisions allowing for spouse parties to a financial agreement to make a financial agreement with third parties. Mirror provisions apply to Part VIIIAB financial agreements. While this means, for instance, that de facto partners or parents-as-financiers can be introduced as third parties, the fact that a creditor or trustee in bankruptcy may have the standing to seek to set aside a financial agreement as an ‘interested person’ (ss90K(3) and 90UM(6)) means caution needs to be exercised when extending the pool of parties.

A related matter that has already been referred to above is the need to ensure that the agreement is not a ‘sham’ entered into to defraud creditors, de facto partners, or spouses 

Matters that must and may be included in financial agreements:

All of the six types of agreement (including subsequent agreements terminating such contracts under ss90J(1)(a) and 90UL(1)(a)) referred to in the section ‘the timing of the agreement’ above have as their subject matter specific ‘specified matters,’ one or more of which must be included for the agreement to constitute a ‘financial agreement.’ Usings 90B(2) as the model for the Part VIIA agreements, these ‘specified matters’ are:

(a) How, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of the spouse parties at the time when the agreement is made, or at a later time and before a divorce, is to be dealt with;

(b) The maintenance of either of the spouse parties:

  • During the marriage;
  • After divorce;
  • Both during the marriage and after divorce.

What are the tax advantages of Mediation?

All deeds, documents, and provisions relating to the mediation procedure are exempt from stamp duty and any expense, tax, or right of any kind and nature. The conciliation report is exempt from registration tax within the value limit of $50,000; otherwise, the tax is excess. Furthermore, in a successful mediation, the parties are granted a tax credit commensurate with the indemnity paid, up to the amount of five hundred euros. If the mediation fails, the tax credit is reduced by half.

Is mediation always mandatory?

No, here is the list of compulsory subjects by law:

  • Condominium,
  • Real rights,
  • Division,
  • Hereditary successions,
  • Family agreements,
  • Lease,
  • Loan,
  • Business rental,
  • Compensation for damage resulting from medical and health liability and defamation by the press or other means of advertising,
  • Insurance contracts, except for those relating to liability for road traffic, banking, and financial damage.

Sections In Our Binding Financial Agreement

At Brampton Keats, we create Binding Financial / Separation Agreement templates for couples to fill out before seeing lawyers. This saves many hours seeing lawyers during the initial stages and saves teams $1000s in unnecessary legal fees.

To give you an example of what is in our Binding Financial Agreements, here is a brief outline of the sections we include:

  • Details & General Terms
  • Definitions
  • Separation Declaration
  • Marital status and children
  • Property and financial resources
  • Sale of Property
  • Superannuation entitlements
  • Other property
  • Spousal maintenance
  • Representations
  • General provisions
  • Signing page

Contact Family Law Mackey 

If you would like more information on how we can assist you with your binding financial agreement or any other family law matters, do not hesitate to contact “Family Law Mackey” on (07) 4847 0198 or contact us via Email here.

Frequently Ask Question 

What are the main functions of the agreement?

The mediator is the natural person who carries out mediation without the power to make binding judgments or decisions for the service recipients.

Where does the agreement take place?

The mediation takes place at an operational headquarters of the conciliation body freely chosen by the applicant from among those present in the judge’s area with territorial jurisdiction for the dispute.

How do you start an agreement?

Mediation is introduced with a simple question to the body in the place of the territorially competent court for the dispute, containing the indication of the invested body, the parties, the object of the claim, and the related reasons.

Can I start a lawsuit without attempting an agreement?

No, if the subject is one of the mandatory ones. If the parties in dispute immediately turn to the judge, the same will assign them (no later than the first hearing) a term of 15 days for the presentation of the mediation request.

Can I start the case when the agreement has not yet been completed?

No, if the mediation process has already begun, it cannot be interrupted at any time. However, it must still end with a report drawn up by the mediator, regardless of the mediation outcome.

What happens if the parties do not agree on the person of the mediator?

The neutral third party can be chosen by the parties and appointed by the forensic body, among the mediators specially trained and accredited to perform this function for the body which, if the parties do not express any preference, will choose and appoint the mediator.

What are the primary obligations of mediators?

The mediator is bound by the obligation of confidentiality concerning the statements made and the parties’ information during the mediation process. A mediator is an impartial person. Before accepting the assignment, he must sign a declaration of impartiality with which he declares that he has no relationship with the parties, that he has no personal or economic interest, and that he has no prejudice.

How soon must the first meeting between the parties be scheduled?

The mediator must schedule the first meeting between the parties within thirty days from the application filing.

Who participates in the meeting with the mediator?

The parties must participate personally so that in the event of an agreement, the procedure can end with the drafting of a definitive agreement. With the consent of the parties and the mediator, other persons may be admitted, such as experts, whose presence is deemed necessary or appropriate for resolving the dispute.

What is the legal value of the agreements reached with the mediation procedure?

Upon completion of the Mediation procedure, any agreement reached between the parties constitutes an enforceable title for the forced takeover, the specific execution, and the registration of a judicial mortgage.

What happens if the parties fail to reach an agreement?

During the first meeting (the preliminary planning meeting), the mediator clarifies to the parties the function and methods of carrying out the mediation. The mediator, always in the same first meeting, then invites the parties and their lawyers to express themselves on the possibility of concluding the mediation with an agreement, or of starting the mediation procedure and proceeding with the development or, in case of no-deal, terminate the mediation procedure and going to court. In this last case, nothing is due to the mediation compensation.

Does the mediation procedure increase the cost of handling the dispute?

These procedures reduce the costs of managing a dispute that is dealt with and resolved in a much shorter time than the “traditional” judicial proceeding.

Are the costs of mediation deductible from the future costs of the lawsuit?

No, mediation costs are not deductible from those of the subsequent case, not even in the case of compulsory mediation.

What is the difference between a referee and a mediator?

The mediator does not issue judgments but assists the parties in finding a standard solution. An arbitrator, also acting as a neutral third party, produces a critical review for the parties.

What is the difference between arbitration and mediation?

The arbitration results in a binding judgment adopted by a neutral third party. Arbitration arises from an agreement of the parties that may pre-exist at the onset of the dispute or after this. However, the main difference lies in the fact that in this procedure, the solution to the conflict is imposed on the parties by a neutral third party.

Is it mandatory to be assisted by a lawyer in Mediation?

The assistance of a lawyer registered in the Register is mandatory whenever mediation is a condition of admissibility.

Involuntary mediation cases, it is not compulsory to assist a lawyer, but it is still recommended.

BINDING FINANCIAL AGREEMENTS