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Entering into a Binding Financial Agreement in Australia but you're currently overseas

Family Law: 27 May 2020

A Binding Financial Agreement (BFA) is an agreement between de facto, soon to be married or already married couples. These can be made either before, during or after their relationship.

For a BFA to be legally binding and for it to be enforceable, the following requirements must be met:

  1. Both you and your spouse or partner must have obtained independent legal advice prior to signing the agreement; and
  2. Both you and your spouse or partner must possess a certificate from your legal practitioner confirming that they have advised you independently as to the effect of the agreement on your rights and entitlements under the agreement, and the advantage and disadvantages of you entering into the agreement.

Many of those who have entered into a BFA have questioned whether they will be able to obtain independent legal advice while they are stuck overseas. The answer is that you can, however the lawyer who is giving you the independent legal advice must hold an Australian Practicing Certificate. Another key point would be preferably, a lawyer who practises in Family Law.

If you obtain independent legal advice overseas, but the lawyer who gives you that advice does not hold an Australian Practising Certificate, then the BFA would not be legally binding.

In the matter of Murphy v Murphy [2009] FMCAfam 270, the Wife who was overseas at the time, went to a lawyer in the Philippines to receive independent legal advice. The lawyer provided to the Wife Independent Legal Advice, however, was not entitled to practice in Australia as he did not hold an Australian Practising Certificate. This meant the BFA was not legally binding.

Similarly, in the matter of Ruane v Bachmann-Ruane [2009] FamCA 1101, the Husband who was in England at the time, sought an English lawyer to provide him with independent legal advice. The lawyer was not qualified in Australian Law and did not hold an Australian Practising Certificate.

In the abovementioned cases, the Court expressed the view that lawyers who practice overseas who do not hold an Australian Practising Certificate would not be able to provide the type of advice required by the Family Law Act. This is because they are unfamiliar with Australian Laws. If an overseas lawyer has provided independent legal advice to you without holding an Australian Practising Certificate, then it will not be binding, and the Court has the ability to dismiss it.

If you are currently stuck overseas due to the current COVID-19 travel restrictions and need advice on a Binding Financial Agreement you will either need to wait until you return to Australia to seek independent legal advice from an Australian practitioner or contact us and we'll provide advice using online video conferencing.

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