Marino Law | Gold Coast Law Firm

Binding Financial Agreements – does your practitioner hold enough experience in family law?

Does your practitioner hold enough experience in the practice of family law to provide you with the independent legal advice required for a Binding Financial Agreement?

We are reminded almost daily of the current (and rising) divorce rate in Australia. Additionally (and not as well known), we have the ever increasing separation rate of de facto relationships. As a result, there is a growing demand for family lawyers to provide legal advice in respect of any parenting and/or financial matters that may arise out of the breakdown of a relationship.

Subsequently, in order to capitalise on the growing demand, it has become increasingly more popular for non-family lawyers to dabble in the complex area of family law.

Probably the most concerning aspect of this current trend is the provision of independent legal advice on Binding Financial Agreements by non-family lawyers.

Binding Financial Agreements are highly technical and must comply strictly with the relevant requirements of the Family Law Act 1975 (“the Act”), including specific requirements as to the matters for which independent legal advice must be given.

In order for a legal representative to properly discharge their duty under the Act, independent legal advice on more than just the wording of the agreement is to be provided to the client. Such advice requires the legal representative to hold in-depth knowledge of, and experience in, family law.

Failure to comply with the relevant requirements of the Act may result in the Binding Financial Agreement being set aside.

If successful, once a Binding Financial Agreement has been set aside, the financial matters arising from the breakdown of a relationship are open for determination by the Court.

Family law practitioners are seeing an increasing number of applications being made to the Court, seeking to set aside Binding Financial Agreements that fail to meet the relevant requirements of the Act.

In order to ensure certainty, potential clients and their estranged partners should not be tempted to instruct a legal representative to provide independent advice on a Binding Financial Agreement unless they are proficient in the practice of family law.

The family law team at Marino Law hold the expertise required to negotiate terms, drafting and provide advice in respect of any financial agreement entered into under the Family Law Act 1975. Please do not hesitate in contacting us on 07 5526 0157 for an initial consultation.

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