The Common Law Prenup, formally known as a Binding Financial Agreement (BFA) in Australia, is a crucial document for parties planning to marry who wish to establish clear financial arrangements in advance. It is particularly relevant for individuals with significant assets, business interests, expected inheritances, or those entering second marriages. The agreement must comply with the Family Law Act 1975 (Cth) and requires both parties to receive independent legal advice. It typically includes comprehensive details of all assets, liabilities, and financial resources of both parties, provisions for property division, and arrangements for financial support in case of relationship breakdown. The document must be carefully drafted to ensure enforceability and should be prepared well in advance of the marriage to avoid any suggestion of duress.
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1. Parties: Identification and details of both parties entering into the agreement
2. Background: Context of the agreement, including the intended marriage and purpose of the agreement
3. Definitions: Definitions of key terms used throughout the agreement
4. Independent Legal Advice: Declarations regarding receipt of independent legal advice by both parties
5. Full and Frank Disclosure: Acknowledgment of financial disclosure by both parties
6. Separate Property: Definition and treatment of property owned separately by each party
7. Joint Property: Treatment of property acquired jointly during the marriage
8. Financial Support: Provisions regarding spousal maintenance and financial support
9. Termination Events: Circumstances under which the agreement will terminate
10. Dispute Resolution: Process for resolving disputes related to the agreement
11. Severability: Provisions for maintaining validity if parts are found void
12. Governing Law: Specification that Australian law governs the agreement
13. Execution: Formal requirements for signing and witnessing
1. International Assets: Include when either party has significant assets outside Australia
2. Existing Children: Include when either party has children from previous relationships
3. Future Children: Include when parties want to address financial arrangements regarding future children
4. Business Interests: Include when either party owns or operates a business
5. Inheritance: Include when there are specific provisions regarding expected inheritances
6. Superannuation: Include detailed provisions about superannuation splitting
7. Life Insurance: Include when parties agree to maintain life insurance policies
8. Intellectual Property: Include when either party has significant IP assets
9. Debt Allocation: Include when there are specific arrangements for existing or future debts
1. Schedule A - Assets and Liabilities of First Party: Detailed list of all assets and liabilities of the first party at time of agreement
2. Schedule B - Assets and Liabilities of Second Party: Detailed list of all assets and liabilities of the second party at time of agreement
3. Schedule C - Statement of Independent Legal Advice (First Party): Certificate from first party's lawyer confirming provision of independent legal advice
4. Schedule D - Statement of Independent Legal Advice (Second Party): Certificate from second party's lawyer confirming provision of independent legal advice
5. Schedule E - Valuation Reports: Professional valuations of significant assets (if applicable)
6. Schedule F - Business Assets: Detailed description of business interests and their agreed treatment
7. Appendix 1 - Financial Disclosure Documents: Copies of financial statements and other relevant financial documents
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