Preparing a Binding Financial Agreement and independent legal advice
Significantly, you cannot prepare a binding and legally enforceable BFA without using lawyers. It is a statutory requirement that each party to the agreement obtain their own independent legal advice in relation to it. This is substantially because unlike consent orders, there is no safeguard associated with BFA’s, which are essentially contracts between two parties. Consent orders are reviewed by Registrars and Judges in the Family Court, which provides something of a safety net for the parties, as the court needs to be satisfied that the orders proposed to be made are fair and reasonable having regards to the circumstances of the case before the orders are made. With BFA’s, there is no requirement that the agreement be fair and reasonable, and no requirement that it be checked off by a court. Independent legal advice is therefore mandatory.
In any case, it is very important that a binding financial is property drafted by someone who knows what they’re doing. Solicitors with expertise in this area of family law will be able to draft a binding financial agreement that not only reflects the agreement reached between the parties, but one that is legally binding, complies with the relevant legislation and is at minimal risk of being overturned at a later date.