Family Law Reforms

23 June 2010

A major change in Family Law in Australia occurred in March 2009. The Family Court now has jurisdiction to deal with disputes concerning married, unmarried and same sex couples who separated after 1 March 2009 (or have otherwise opted in under provisions of the Act). This means that same sex couples and domestic partners now have the legal right to "spousal maintenance" and are able to enter into a Binding Financial Agreement.

BINDING FINANCIAL AGREEMENTS

Although couples may feel affronted by the concept of planning the end of a relationship when their life together is just beginning, BFAS's provide a method of avoiding the emotionally charged and costly Court battles that follow a separation. The Act gives domestic partners (irrespective of gender) the right to enter into a financial agreement which would deal with the distribution of property and finances in the event of a relationship breakdown. To be enforceable:

the agreement must be in writing
the agreement must be executed by both parties
each party must obtain legal advice before signing the agreement
a practitioner’s certificate must accompany the agreement

A BFA, like any contract, can be set aside in circumstances such as duress or fraud. It can also be set aside if it is found that either party has not disclosed all of their assets.

FURTURE NEEDS & MAINTENANCE

Non-married couples also have the same rights as married couples with respect to future needs and maintenance. This could mean that there is a financial adjustment towards a stay-at-home parent that does not have as much skill or earning capacity as the other party.

A Court may make a maintenance order if it is satisfied that the applicant is unable to support him/herself because:

the partners earning capacity has been adversely affected by the circumstances of the relationship; or
any other reason arising in whole or part from the circumstances of the relationship.

In determining whether to make an order and in fixing an amount to be paid a Court must have regard to the following (this is not an exhaustive list):

income, property and financial resources of each domestic partner
physical and mental capacity of each domestic partner for appropriate gainful employment
financial needs and obligations of each domestic partner
responsibilities of either domestic partner to support children or any other person
reasonable standard of living, age, state of health and length of the relationship

WHO SHOULD ENTER INTO BINDING FINANCIAL AGREEMENTS

Individuals who have significant assets
A partner who has significantly more assets than the other
If one partner has a business and wants protection
Men or women who may be giving up a lucrative career to look after children
If you are concerned about significant debt that the other party is bringing to the relationship
People who have been married before or have children from a previous relationship
Where one party has an interest by loan account or otherwise in a trust with substantial assets
Where one party will receive or it is anticipated that he/she will receive a large inheritance
Where one party will receive a financial benefit from his/her parents during the relationship
Where it is anticipated that one party will receive an interest in a trust with substantial assets
Where on party either holds or it is expected that he/she will receive shares within a family company

Binding Financial Agreements have been a valuable tool used since December 2000 for individuals who are married or were contemplating marriage in an attempt to limit the financial damage of a separation. In light of the significant changes to the Act, domestic partners should seek legal advice and consider whether to enter into a binding and enforceable Financial Agreement.

For more information contact Joanne Randello 95100366