A binding financial agreement (BFA) ousts the jurisdiction of the family law courts to make an order under the property settlement or spousal maintenance provisions of the Family Law Act about the financial matters to which the agreement applies. Part VIIIA of the Family Law Act sets out the requirements for BFAs in relation to marriage, or contemplation of marriage; Division 4 of Part VIIIAB of the Family Law Act sets out the requirements for BFAs relating to de facto relationships.
A number of cases have challenged the validity of the provisions in the Family Law Act in relation to BFAs. Previous attempts to amend the provisions to ensure certainty have not resolved the difficulties and have arguably created grounds for dispute.
The proposed provisions set out in the exposure draft would amend the Family Law Act to remove existing uncertainties around requirements for entering, interpreting and enforcing BFAs. They would also make changes to the coverage of spousal maintenance matters in BFAs and introduce statements of principle in relevant parts of the Family Law Act to outline the binding nature of BFAs and reinforce that the intention of the regime is to offer certainty to parties.
The following consultation paper explains the proposed amendments and highlights issues we invite public comment on:
Making a submission
Submissions on the proposed binding financial agreement provisions can be emailed to BFAamendments@ag.gov.au or faxed to 02 6141 3246. Submissions may also be posted to:
Public consultation: Binding financial agreements
Family Law Branch
3-5 National Circuit
BARTON ACT 2600
Submissions must be received by 19 June 2015. Submissions may be the subject of a request for access under the Freedom of Information Act 1982.
Any queries in relation to the submission process can be made to the Family Law Branch on 02 6141 3003 or emailed to BFAamendments@ag.gov.au