There are legal requirements that must be met for a Binding Financial Agreement (BFA) to be valid and enforceable under the law.
Firstly, the Agreement must be in writing. It must also refer to the relevant section under Section 90 of the Family Law Act 1975 (Cth) stating what type of Financial Agreement it is. Please refer to our article: ‘5 FAQs about Financial Prenups’ regarding the different types of Agreements that fall under the umbrella of a Binding Financial Agreement.
Furthermore, two separate lawyers from different law firms will need to provide each party to the relationship independent legal advice. The lawyers must give their advice referring to the Family Law Act 1975 (Cth). They are also required to issue and sign the necessary Certificate showcasing they provided the legal advice. A copy of each of the Certificates signed by each of the lawyers is provided to both Clients before the clients sign the Agreement.
Finally, the parties to the relationships must sign the BFA. It is unlikely, due to the necessity of the separate Independent Legal Advice for both parties that a BFA would be set aside by the Court.