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Samantha Padfield Joins the CMS Legal Team

Samantha Padfield Joins the CMS Legal Team

It is with great pleasure that we announce the most recent appointment of Ms Samantha Padfield Read More

Investing in the Future

Investing in the Future

Over the last few months CMS Legal Family Lawyers has had the privilege of hosting College Read More

Keep Beauty Real Campaign

Keep Beauty Real Campaign

When our solicitor Marilyn Krawitz is not attending to clients at CMS Legal Family Lawyers, Read More

Confidentiality in the Family Court of WA

Confidentiality in the Family Court of WA

It's common knowledge that the media cannot publish the names of the parties in Family Court Read More

Court Grants Widow Right to Use Dead Husband's Sperm

Court Grants Widow Right to Use Dead Husband's Sperm

For most new parents, having a child is one of the most special times of their lives. However, Read More

Binding Financial Agreements – A False Sense of Security

Binding Financial Agreements (BFAs) or - as they are more commonly referred to - pre-nuptial agreements, were originally intended to allow two people planning marriage to make decisions about how to divide their assets and liabilities if the marriage were to break up.

Provisions were incorporated into the Family Law Act, which allowed BFAs to be entered into before or after the marriage, or even after the parties have separated. The Act sets out the specific procedure for agreements to be made into BFAs, including requiring both parties to the agreement to obtain independent legal advice.

Similar provisions exist in Western Australia’s Family Court Act for De Facto couples.

The general expectation amongst people who seek to enter into these agreements is that a BFA will be binding upon the parties at separation, and that the provisions of the agreement will apply. This is done for many reasons, but one of the primary motivations we see is that people simply wish to avoid having lengthy and expensive litigation in the event of a marriage break down.

Unfortunately, recent cases have called into question the enforceability of BFAs. The Family Court has demonstrated that it is prepared to set aside agreements in various circumstances. If the Court sets aside the BFA, the question of how property is divided then comes under the usual provisions of the Family Law Act.

Even in circumstances where a BFA is upheld, the party seeking to rely on the agreement has usually spent many months and a significant amount of money arguing to enforce an agreement which that party expected would have been binding and enforceable from the beginning.

A recent real-life example – ‘The pole dancer case’ – is just one that threatens to overturn thousands of similar agreements.

In a sense, the risk that a BFA could be overturned has the potential to compound the costs of litigation in a dispute, rather than avoiding litigation.

Ultimately, there needs to be more certainty with regards to the enforceability of BFAs before we at CMS Legal could encourage our clients to enter into such agreements.

Run for Heaps of Reasons

Once again the HBF Run for a Reason hits the streets of Perth, this time with a new route through the Graham Farmer Tunnel. The full run is a challenging 12kms or you could do the 4km run along Riverside Drive. This year our Principal Craig Scott will join thousands of others to raise money for the Cancer Council WA, Lifeline WA, Diabetes WA, The Heart Foundation WA and many more great causes.

So what’s your reason? Running (or walking) can be a great way to keep physically healthy, mentally re-charge, connect socially and to look and feel great.

Craig Scott’s ‘reason’ for 2013 is to help the Cancer Council WA work towards better education, early detection and hopefully finding less invasive cures for cancer for fellow Western Australians.

See more on his fundraising page here:

If you have a reason, you can join him this year, click here to register today.