Hervey Bay has its own particular rhythm. There’s a mix of retirees settling in for a sea change, small business owners running fishing charters, tourism operators, and tradies, and blended families building a new life together.
Whatever the circumstances, a growing number of local couples are asking the same question before they marry, move in together, or remarry later in life: should we put a binding financial agreement in place?
A binding financial agreement, or BFA, is a private contract between a couple that sets out how their property, assets, and finances would be divided if the relationship ends. Under Part VIIIA and Part VIIIAB of the Family Law Act 1975, a BFA can be made before a relationship begins, during it, or after separation. This includes both de facto relationships and married couples.
Unlike orders made by the Federal Circuit and Family Court of Australia, a BFA doesn’t require a Judge to decide the outcome is “just and equitable” — which is exactly why couples use them.
For a lot of Hervey Bay families, this matters in very practical ways. A couple entering a second marriage later in life may each want to protect assets for their own children. A business owner may want to ring-fence a fishing charter, café, or trade business built up over years before the relationship started. A retiree relocating to the Bay may want certainty around superannuation or a family home bought outright. A BFA lets people agree on these things in advance, rather than leaving them to be argued over years later (and spending money on legal fees to argue these things after separation).
BFAs have a reputation for being rock solid, but they aren’t bulletproof, and one High Court case changed the conversation nationally.
In Thorne v Kennedy [2017] HCA 49, a couple signed a prenuptial agreement just days before their wedding, followed by a near-identical post-nuptial agreement after they married. The wife had been told the wedding wouldn’t go ahead unless she signed, had limited assets of her own, and was on a temporary visa with no real support network in Australia. Her own lawyer advised her strongly against signing. The High Court unanimously set both agreements aside, finding they were affected by undue influence and unconscionable conduct.
The case, fortunately, didn’t spell the end of BFAs, but it did sharpen the rules around how they need to be made. The Court now look closely at things like:
This shows the importance of ensuring that your BFA is drafted properly, by a Lawyer that understands the law surrounding BFA’s and how to protect the standing of the BFA into the future.
For a BFA to hold up, both parties need genuinely independent legal advice, meaning two separate solicitors, not one lawyer acting for both sides or a rushed conversation the week before a wedding.
It’s also worth building the agreement well ahead of any major date, whether that’s a wedding, a house purchase, or moving in together, so there’s no argument later that anyone was pressured into signing.
If you’re considering a binding financial agreement, whether you’re protecting a local business, blending a family, or simply want certainty going into a new relationship, it is certainly worth having the agreement properly drafted and reviewed by someone who understands both the law, the issues that may arise in the future and the kind of assets Hervey Bay families typically hold.
Our team can talk you through whether a BFA is the right fit for your situation, and make sure that it is built to last.
