The Family Law Branch of the Australian Attorney-General’s Office has released a consultation paper outlining proposed changes to the Family Law Act (“the Act”) dealing with binding financial agreements.

A binding financial agreement, or “BFA”, allows married or de facto couples to come to an agreement on how their property is to be distributed upon the breakdown of the relationship, and thus oust the jurisdiction of the family law courts to make an order concerning distribution of property or spousal maintenance under the Act. A BFA can be agreed to before, during or after the relationship.

There have been many court cases challenging the validity of the provisions of the Act dealing with BFA. The proposed changes, outlined in the consultation paper, would amend the Act to remove existing uncertainties around the requirements for entering into, interpreting and enforcing BFAs. The paper also includes some proposed changes concerning spousal maintenance under the Act.

Importantly,  the proposed changes would also introduce a statement of principles in the Act relating to the intention of the Act to make BFAs binding agreements, with a view to providing greater certainty.

The consultation paper is available online here:

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