Issue link: https://viewer.e-digitaleditions.com/i/122153
moneytalks "While some lawyers are sceptical about BFAs, others support their use." part of it, to be carried out (for example, the property that was the subject of the agreement had been sold). • There was a power imbalance between the parties (for example, a wealthy older man and a young wife) and the agreement was only proposed at the last minute or there was no provision for an increased settlement as the years of marriage increased. • One or both parties did not receive competent independent legal advice before signing the BFA. • There was inadequate certification of independent legal advice. • All parties were not provided with the document once signed and certified. Being aware of the reasons why BFAs have been set aside in the past is important for anyone contemplating such an agreement. It is vital to ensure that both the drafting of the BFA and the process by which both parties negotiate and execute the agreement are carried out in a way that reduces the risk of a challenge in the future. It is important to ensure that both sides receive adequate independent legal advice, and that the process is properly carried out and documented. To prenup or not to prenup? My own view is that BFAs serve a useful purpose in creating a legal obstacle and deterrent, notwithstanding the current willingness of judges to scrutinise and, in some cases, set them aside. Individuals may be able to have a BFA overturned, but they would still have to take the matter to court, convincingly present an argument that they were, for example, bullied into signing the agreement, and then wait for the court's decision. While a carefully drawn and correctly executed BFA may not guarantee a complete and irrevocable solution, when used in conjunction with other legal protection it can serve as a powerful deterrent. In addition, the emotional and financial costs are often much higher if there is no BFA. OUTthere's guest columnist this issue is Damien Bowen, a family law solicitor and director at Bowen Buchbinder Vilensky Lawyers in Perth. Visit: www.bbvlegal.com.au 84