Binding Financial Agreement (BFA)

The division of assets in the relationship isn’t automatically a 50:50 split.  Instead, it’s based on each party’s contributions to acquiring assets and caring for the family, as well as considering the future needs of both parties.  This process is known as property division or property settlement. 

In cases where parents can’t reach agreement on arrangements for their children post-separation, we recommend trying to negotiate with the other parent in most cases.  Sometimes, specialized family mediation services can facilitate a mutually agreeable decision or compromise.  If negotiation and/or mediation fails, either parent may initiate proceedings in the Family Court of Western Australia.  The Court prioritizes the best interests of the child as outlined in the Family Law Act and the Family Court Act in determining how much time the child/ren are to spend with each parent.

Typically, when a couple buys a home together, both of their names are included as borrowers on the mortgage documents.  Consequently, both parties share the responsibility of making the mortgage payments.  

Even in the event of a separation or divorce, this obligation remains unchanged.  Even if one person moves out, as long as they are listed as a borrower, they are still accountable for meeting the payments, and a failure to do so may result in an adverse credit rating or the bank taking proceedings. 

Of course, other arrangements can be made as well, and lawyers are well placed to assist with negotiating other arrangements. 

The most effective means of safeguarding both parties’ assets in case of a future divorce or separation is through a Binding Financial Agreement (BFA).  By outlining the terms of asset division, a BFA minimizes unnecessary conflict, expedites the separation process, and consequently reduces legal expenses. 

What makes a BFA particularly advantageous is that both parties can craft their own agreement tailored to their specific requirements, rather than relying on the court.  

In order for a BFA to be binding, both parties need to have it signed by an independent lawyer. 

A period of 12 months of separation is required before you can apply for a divorce.  Separation is defined as one party communicating to the other that the relationship has ended, followed by actions consistent with that communication.  

It’s important to note that physical separation is not necessary, nor does it automatically terminate the marital relationship, but it can be indicative of a separation. 

Child support and spousal maintenance both share the overarching aim of providing financial assistance to a former partner. 

Child support typically involves one party providing financial assistance to the other to assist in supporting a child or children from the relationship post-separation. 

On the other hand, spousal maintenance may be assessed for one party to provide financial support to the other if the latter cannot meet their own financial requirements after separation, regardless of whether they have children. 

De facto couples possess comparable rights and entitlements to those of married couples.  Upon separation, de facto partners have the right to pursue a property settlement, affording them all the usual advantages inherent in that procedure. 

There are particular legal requirements for a de facto relationship to be considered as binding in law, and more information can be sought from one of our Family Lawyers if you are unsure if your relationship is in fact a de facto relationship. 

In family law, when a parent considers moving with their child far away from their usual residence, the matter is termed a ‘relocation case’. 

Typically, if a parent plans to relocate with their child, the other parent must either agree to the move or the parent who wants the move should seek permission from the Family Court.  This requirement is based on the understanding that relocating with a child can significantly impact their ability to maintain meaningful relationships with both parents and other significant individuals, such as grandparents. 

If you find yourself a victim of family violence, reach out to a trusted individual, whether it be a friend, family member, or counsellor, who can provide support and help you navigate your options.  Family violence extends beyond physical harm; it encompasses any threatening, coercive, dominating, or abusive behaviour within a family, domestic, or intimate relationship, or former intimate relationship, that induces fear in the victim.  If there is immediate danger remove yourself from the situation or call 000 for help. 

For those experiencing domestic violence, seeking assistance promptly is vital. Securing safe housing often takes precedence for many in this situation.  Take proactive steps to ensure your safety by contacting the police and arranging for ongoing legal protection, such as obtaining a Family Violence Restraining Order (FVRO). 

For more information, speak to one of our Family Lawyers. 

Obtaining a divorce and obtaining a property settlement are separate legal matters, independent of each other.  While one doesn’t necessarily require the other, they often coincide in the process of ending a marriage.  Couples can negotiate and reach a property settlement agreement before finalizing their divorce, however, if parties divorce, the time starts ticking down to reach a property settlement – the limitation is 12 months for the date of the divorce.