A binding financial agreement (often called a BFA, or a “prenup” when made before marriage) is a contract between partners about how property, superannuation and financial resources will be dealt with if the relationship ends. A properly made agreement can give both people certainty and avoid a court deciding the outcome.

When can a financial agreement be made?

• Before marriage or before a de facto relationship begins
• During a marriage or de facto relationship
• After separation or divorce, as an alternative to consent orders

What makes an agreement binding?

The Family Law Act 1975 (Cth) sets strict requirements. Among other things:

• the agreement must be in writing and signed by both parties;
• before signing, each party must receive independent legal advice about the effect of the agreement on their rights and its advantages and disadvantages; and
• each party must receive a signed statement from their lawyer confirming that advice was given.

Even when these requirements are met, a court can set an agreement aside in some circumstances – for example, if there was fraud or non-disclosure of significant assets, if a party was pressured or unfairly disadvantaged when signing, or if there has been a material change in circumstances relating to the care of a child. The High Court has confirmed that agreements signed under significant pressure, such as shortly before a wedding, may be set aside.

What can an agreement cover?

• How property and debts will be divided
• Superannuation
• Spousal maintenance
• Property brought into the relationship, inheritances and family business interests

A financial agreement cannot decide parenting arrangements, and child support is dealt with separately.

Our approach

We draft agreements for one party, or advise you on an agreement prepared by your partner’s lawyer. We focus on full disclosure, clear drafting, and allowing enough time before signing, all of which reduce the risk of the agreement being challenged later.

Common questions

How far before the wedding should we sign?

As early as possible. Signing well ahead of the wedding, with time for negotiation and independent advice, reduces the risk of a later claim that a party signed under pressure.

Is a financial agreement better than consent orders after separation?

It depends. Consent orders are assessed by the court and are generally harder to challenge. A financial agreement offers more privacy and flexibility. We can advise which suits your situation.

Can we write our own agreement?

No. Without independent legal advice and the required statements, the agreement will not be binding.

Related services

• Separation & Divorce
• Parenting Arrangements
• Property Settlement
• Spousal Maintenance
• Domestic & Family Violence
• Consent Orders

This page is general information only and is not legal advice. Every family is different – please contact us for advice about your situation.