Binding Financial Agreements: the importance of obtaining a certificate of independent legal advice

Case Note: Adame v Adame [2014] FCCA 42

This was a case where there was no certificate signed by a legal practitioner that gave the wife independent legal advice on the financial agreement as required by s 90G(1) of the Family Law Act 1975.

The absence of a signed statement by the legal practitioner who gave advice means one of the critical requirements of s 90G(1) is missing.

The Courts found that the financial agreement was not, for that reason, binding on the parties and was set aside.

Lesson

It is important if you are the recipient of a Binding Financial Agreement, prior to signing the BFA, have the document considered by a legal practitioner.  Good practice is for a legal practitioner to provide you with written legal advice regarding the BFA, so that you are aware of your legal obligations, consequences and rights, should a BFA be initiated. A certificate of independent legal advice issued by the legal practitioner needs to be obtained by you to ensure that the BFA is complied with.

You can find out more about Binding Financial Agreements here.

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