• Where a couple are fully agreed on all aspects of the agreement and have all the required documentation of assets and liabilities available, and there is no superannuation split required, it is possible to complete a BFA in about a fortnight.
• That however is rare. More usually it takes between 4 to 8 weeks and sometimes longer for a BFA to be prepared and signed by both parties with a certificate issued by each of their lawyers.
• The process involves:

1. taking your instructions;
2. creating schedules detailing all assets and liabilities of both parties;
3. preparing a draft;
4. advising; and
5. negotiating terms with your partner or ex-partner or their lawyer.

• The cost depends on the time it takes to complete the required processes.
• We are usually able to provide you with an estimated range of the cost of your BFA after your first consultation however $2,500 to $4,000 is the standard range of costs if parties have agreed on the terms and we are drafting the BFA.
• Where the BFA has been drafted by another lawyer and we are engaged only to provide advice on its fairness and implications, the cost is usually within the range of $400 to $800.
• Costs will vary depending on the complexity of the matter, the assets and liabilities involved. your capacity to provide all the information required for the schedules of assets and liabilities and a range of other factors including the level of negotiation required.

• Your parents can be parties to the agreement with the terms of the loan spelt out and how those terms are dealt with on breakdown of the relationship.

• You cannot be certain as no one knows what the future holds. 
• If you are together for a long time there may be many unforeseen circumstances.
• You can discuss any issues with us and provide for reviews of the agreement over time. 
• You can be certain that a BFA will be less expensive than a Family Court dispute about property interests that may take months or years to resolve.

• It is certainly not a romantic topic however it can be framed as giving both parties certainty as to what should happen.
• A BFA can save both parties from the battle that commonly occurs at the end of a relationship. 
• It might be seen as similar to an ‘insurance’ policy but you only ever have to pay it once.

• Parties to a BFA can agree to terminate the BFA by:

1. including a termination provision in a BFA; or
2. entering into a written agreement to terminate the BFA.

• A BFA can also be terminated by the Family Court.

Question

My partner and I have already been living together for 3 years. We are planning to have children. I will shortly receive a substantial inheritance. If we enter a BFA should we state our property from 3 years ago or now?

Answer

• You should do both. 
• The BFA should ensure you both agree on:

1. the current financial position;
2. how you got there; and 
3. your desire to formalise your intentions for the future.

Question

After separating 10 months ago my husband and I entered a BFA that gave me approximately 55% of our net property. This was on the basis that our children who are aged 13 and 14 would live with each parent week on week off. I have since realised that I have a small super fund of about $40,000 that I had forgotten about and neglected to disclose. I have also learned that he had purchased an investment property with his new partner around the time of the BFA but did not include his interest in it. I feel I have been denied a share of the investment property. What can I do?

Answer

The Family Court may set aside a BFA where either party has not disclosed its true assets when entering into the BFA.

Both those situations may be grounds to set aside the BFA however you are not likely to be successful in arguing that your own non-disclosure of your forgotten superannuation interest is a valid ground for you to apply to set aside the BFA.

Some investigation will be required to assess whether it is worth the effort and cost of seeking to set aside the BFA on the basis of your husband not disclosing a real property interest. 

At this point you do not know whether your former partner’s interest was significant in value. In the circumstances you have outlined your non-disclosure may have a higher value than his.

Question

My wife and I finalised our affairs with a BFA in relation to property and an amicable agreement that our 11-year-old twins would live 6 days per fortnight with me and 8 with her. However, within a few weeks of these arrangements she was offered a lucrative employment opportunity of 12 to 18 months overseas. We agree that the children should live with me and visit their mother during school holidays while she is living overseas however she will not agree to vary the terms of the BFA.

Answer

• This situation could amount to a ground to set aside the BFA. However, you have agreed to the change in parenting arrangements that may be relatively short term and would not make a significant difference to the terms of a property order.
• You should discuss the details with us and consider whether increased child support or spousal maintenance could lead to a fair result for the period the mother is overseas.
• You should also consider allowing for a more significant adjustment in your favour if her position overseas continues longer.

Question

Before entering our marriage my husband and I signed a BFA. I was 58 years old and he was 47. I had all the assets including my home in which I still live. He had no assets. The BFA provided that I would pay all household expenses and whatever we earn ourselves we keep if we separate. In our 10 year marriage we both worked full-time. We separated in August 2013. I retired in December 2013 and am now 70 years old. My assets are now worth $2.8M including my home valued at $1.7M. My husband is now 59 and has worked full-time throughout our marriage and since our separation. He purchased some investment properties during our marriage although he claims they belong to his son. He now says he wants $550,000 which is half my savings. These are my only retirement funds. We have no children together. Is my husband likely to succeed in court?

Answer

• Your husband’s threatened claim cannot succeed if the BFA was formalised properly and there is no ground upon which to set it aside. 
• If entered into around 2003 it was one of the early BFAs and the legislation and case law has evolved since. 
• We will need to scrutinise the document carefully and consider how the figure proposed by your estranged husband is calculated. 
• You can get your advice in anticipation or wait to see if he takes action. He will need to take action within 12 months of your divorce becoming effective. 
• In relation to assets acquired in the name of a third party the court would consider all the facts and circumstances regardless of whose name is on title.

Question

My partner and I have assets that need to be listed with values in our ‘prenuptial’ BFA. These include her delicatessen and my upholstery business that have both been in existence for over 10 years. Are estimates of value sufficient?

Answer

• If the estimates are reasonable and genuine and agreed between the parties who have a full understanding of each other’s businesses, using agreed estimated values may be acceptable to a court.
• The problem with business interests is that formal valuations tend to costly. It is best to obtain at least an indicative appraisal from an independent accountant or other expert.
• Estimating market values of home contents and cars are common.
• A prudent approach for real property is to obtain either an agent’s appraisal or obtain a valuation, particularly if there is any disagreement or uncertainty.
• Current valuation statements should be obtained from each superannuation fund.

Question

I’m engaged and wish to enter a BFA with my fiancé before we get married. It will be my second marriage and her first. I have a number of assets including interests in trusts. She is a fair bit younger than me and has no property. I’m concerned about my fiancé knowing about my assets as she may think I have more cash available than is actually the case. What will happen if I don’t disclose all the properties I have an interest in?

Answer

• Where one party to a BFA fails to disclose an important matter the BFA can be set aside.
• An important matter includes all the assets in which you have an interest.
• If you don’t wish to disclose all your assets you should not enter a BFA.