Binding Financial Agreements – the need for clarity and precision

The Federal Justice System amendment (efficiency measures) Act 2009 came into force on 4 January 2010.

Principally, these amendments redrafted Section 90G of the Family Law Act which is the Section that deals with the issue of what makes a Binding Financial Agreement actually binding.

The amendment, it is said, was introduced to help overcome the effect of the Full Court’s decision in Black & Black (2008) where the court applied a strict compliance test in relation to certain technical requirements for a Binding Financial Agreement.

However, it is appears, unfortunately, that the legislation does not necessarily achieve what it set out to do. In fact, there is wide spread concern amongst practitioners that it is now just as difficult (if not more difficult) to ensure that an agreement is binding and watertight.