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QLD Binding Financial Agreement for Property Division if I Get a Divorce?

Discussion in 'Family Law Forum' started by Kay Chan, 4 May 2015.

  1. Kay Chan

    Kay Chan Member

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    Hi there,
    My situation is, I bought a property a year and half ago, and it is under my sole name. However, my parents helped me to payout the initial deposit and parts of the mortgage payments ( up to 70% of total purchase price). Now only 30% of mortgage remaining in fixed term, and my parents plan to pay it off the end of this year, when the fixed interest term ends in Dec.

    The reason that the property under my name, not my parents, is when I purchased the property, I have permanent residence, but not my parents (they are currently resident overseas). But I am applying PR for my mum at the moment.

    I have been living in the property since the purchase with my boyfriend, and we got engaged couple of months after we moved into the property. During the stay, he has not paid the monthly repayment and has not paid any rates and body corporate fees. But he has paid half of daily living expenses, such as grocery, electricity and internet. etc. And we are planning to get married in Nov this year.

    So I am concerned that when we get married, and things go wrong, like divorce. What is going to happen to this property if I do not do anything at this stage?

    And if the property has to be split 50/50 between my partner and myself, what options do I have to stop that happens(50/50 split)? As most of money paid by my parents, they do want to see that my partner taking advantage of us in that case.

    One more thing, I am in QLD, and I am aware of that the family law is different in every states.

    Thanks in advance.
    K.
     
  2. Ian Macleod

    Ian Macleod Well-Known Member

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    Hi Kay,

    Have you considered making a Financial Agreement?

    Financial agreements are made under the Family Law Act, in this case, you need an agreement that is made before marriage under section 90B.

    Financial agreements set out how a couple wish to divide property in the event of a relationship breakdown. As long as you have the agreement of your fiancée, you can set out in a financial agreement that the property you own with your parents should not form part of your joint property pool. That is, you quarantine it from any future claim.

    The Family Law act 1975 is a Federal Act which means it applies equally in all states and territories.
     
    Kay Chan likes this.
  3. Kay Chan

    Kay Chan Member

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    Thanks so much!! Ian
    Just wondering is this financial agreement different to Prenup ? and also, in order to make this agreement lawful in future claim, do I need to get it done with lawyers ?
     
  4. Ian Macleod

    Ian Macleod Well-Known Member

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    The term Financial Agreement is an umbrella term for an agreement that deals with how the couple want to divide their financial resources in the event of a relationship breakdown.
    You can make a FA before during or after the marriage or a de facto relationship.

    Section 90 B of the family law act deals with financial agreements made before marriage which is the same thing as a Prenup. Prenup is just a more readily understandable term, that's all.
    http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s90b.html

    You don't need to get the agreement done by a lawyer but you do need to receive independent legal advice about your agreement before the agreement will be legal and binding.
    Section 90G set out what you need to do to ensure your agreement is binding.

    http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s90g.html

    I don't want this to seem like a promotion, but here is a Binding Financial Agreement (Prenuptial) Kit, which will help you to draft the agreement. Once your draft is complete you can use the family lawyer review service to get the legal advice if you choose. At the end of the process you have an agreement that will be just as reliable as one drafted by a lawyer but with substantial savings.
     
  5. Tim W

    Tim W Lawyer

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    There are many folks on the internet who offer to prepare Binding Financial Agreements.
    They are not all lawyers. I suggest that this work best done by a lawyer who works in the area of Family Law, as unromantic and distasteful as that may feel.
     

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