AUSTRALIA Law and Practice Contributed by: Paul Doolan, Melinda Winning, Carly Middleton and Jeff Marhinin, Barkus Doolan Winning
during the course of the marriage, as Austral - ian law recognises that there are greater costs involved in running two households rather than one following the breakdown of the marriage. A determination is then made as to whether that spouse has the capacity to meet some or all of their own expenses. To the extent that they cannot and there is a shortfall, the court then assesses the reasonable weekly expenses of the respondent and measures that against their own income and at times property or financial resources. This requires consideration of what expenses the respondent spouse might be paying for the benefit of the applicant, such as mortgage, loans, leases, and school fees. To the extent that there is a surplus income available, then the court has the power to make an order for spousal maintenance against that surplus. Interlocutory spousal maintenance proceedings are generally conducted by a judicial registrar of the Federal Circuit and Family Court of Australia Division 2 (save in Western Australia). They are ordinarily done “on the papers”, with the family court hearing submissions from the parties or their legal representatives, reading the material filed and having regard to documents produced under subpoena, but without cross-examination taking place at that interlocutory stage. 2.5 Prenuptial and Postnuptial Agreements Australian law recognises prenuptial and post - nuptial agreements if they meet the stringent technical requirements imposed by the Fam - ily Law Act. These documents, known under Australian law as BFAs, will oust the jurisdiction of the court to make orders for property settle - ment in respect of those matters covered by the agreement and/or prevent a court from making
orders for spousal maintenance following the breakdown of the marriage. Financial Agreements in Relation to Married Persons A BFA can be entered into prior to marriage, fol - lowing the date of marriage, after separation or even after the divorce. The BFA can cover some or all of the property of the parties to the mar - riage. If its terms are binding, and the BFA is not later set aside by a court, then the court’s power to make orders is ousted in respect of those matters covered by the BFA. To be binding, a BFA must be in writing, have certainty as to its terms, and specify the legis - lative provision that it is made pursuant to. In addition, each party must receive a statement of independent legal advice from an Australian qualified legal practitioner. Challenges can also be made to BFAs seek - ing to set them aside on grounds that largely reflect those found when challenges are made to contracts or agreements. By way of example, a BFA may be set aside owing to undue influ - ence, unconscionable conduct, duress, fraud, or misrepresentation. The technical requirements under the Family Law Act are strictly imposed by the court. BFAs are binding if, and only if, they meet the exacting statutory requirements contained in the Family Law Act unless a court finds it would be unjust and inequitable not to enforce the agreement and notwithstanding its technical failings. Can Parties to a De Facto Relationship Enter Into a Similar Agreement? Australian law permits parties to a de facto rela - tionship to enter into a BFA. Such an agreement can be made either prior to the commencement
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