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If one of the parties to a Binding Financial Agreement does not want to follow its terms, then they will either have to:
If an Application is made to the Court to set aside the Binding Financial Agreement then the Court will want to know whether the:
The main reasons a Court might decide that a Binding Financial Agreement is not valid, should not be followed and should be set aside are:
There are other reasons a Court might set aside a Binding Financial Agreement. They include:
A court will not set aside an agreement simply because it is not fair to one of the parties.
The fact that both parties must have, before they signed the agreement, each obtained their own Independent Legal Advice and obtained Certificates from the Lawyers giving them the advice, will assist in arguing against any suggestion by one party that they did not understand what they were signing or its consequences.
A Binding Financial Agreement cannot be updated.
If a Binding Financial Agreement needs updating, then it must be terminated and a new Binding Financial Agreement entered into.
What can you put in your Binding Financial Agreement and what do you need to discuss with your spouse first. Find out our answers in the fact sheet What can you include in a Binding Financial Agreement.
The fact sheet What is a Binding Financial Agreement explains the basics you should know about Binding Financial Agreements.
Can you do your Binding Financial Agreement yourself without lawyers? The answer is in our fact sheet Can I prepare a Binding Financial Agreement myself.
You need to be eligible to lawfully enter into a Binding Financial Agreement for it to be valid. Find out more in our fact sheet Who can enter into a Binding Financial Agreement.
The different types of Binding Financial Agreements are explained in the fact sheet Types of Binding Financial Agreements & What type of BFA do I need. If you do not use the correct type of Binding Financial Agreement for your circumstances it may later be set aside by the Court and your partner will not have to follow it.
Will your Binding Financial Agreement protect your assets and income? read more in the fact sheet Are Binding Financial Agreements actually Binding.
The timing as to when you do your Binding Financial Agreement may be important. This is explained in our fact sheet When can you enter into a Binding Financial Agreement.
If you have already started living together, have gotten engaged, have had a baby with your partner or even got married and only later though about getting a Binding Financial Agreement you should read our fact sheet Is it too late to enter into a Binding Financial Agreement.
Read about the benefits to you of having a Binding Financial Agreement in our fact sheet What are the Advantages of a Binding Financial Agreement.
You can also read about any possible downside to having a Binding Financial Agreement in our fact sheet What are the Disadvantages of a Binding Financial Agreement.
Our fact sheet How to tell your Partner you want a Binding Financial Agreement could also be of assistance to you if you have concerns in that area.
Particularly if you have started a new relationship you should be aware of the information in our fact sheet How having a Binding Financial Agreement might help your Succession Planning so you know what might happen with your Will or if you pass away.
If you are separated or divorced and need to document your property settlement agreement as to how you are dividing yoru property in a legally binding and enforceable way, then our fact sheet Should I use a Binding Financial Agreement or a Consent Order will assist you.
Michelle Beatty, Senior Lawyer
Other Questions answered in the Binding Financial Agreements Section
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