Binding Financial Agreements
Protect your assets with a legally binding agreement under Australian law. Before marriage, during relationship, or after separation.
What is a Binding Financial Agreement?
A Binding Financial Agreement (BFA) is a private contract between parties to a marriage or de facto relationship that sets out how property, superannuation, and spousal maintenance will be dealt with upon separation.
Before Marriage BFA
Agreement made before marriage about how property will be divided if the marriage ends.
During Marriage BFA
Agreement made during marriage about property division upon separation.
After Separation BFA
Agreement made after separation but before divorce to finalise financial matters.
Before De Facto BFA
Agreement made before entering a de facto relationship.
During De Facto BFA
Agreement made during a de facto relationship about property division.
After De Facto Separation BFA
Agreement made after a de facto relationship ends to finalise property.
Legal Requirements for a Valid BFA
A BFA must meet specific legal requirements to be enforceable. Failure to meet any mandatory requirement means the agreement is not binding.
Written Agreement
The BFA must be in writing and signed by both parties.
Independent Legal Advice
Each party MUST receive independent legal advice from a separate solicitor about the effect of the agreement on their rights and the advantages and disadvantages.
Signed Certificates
Each solicitor must provide a signed certificate confirming they gave advice before the agreement was signed.
Original or Copy Provided
Each party must receive a signed original or certified copy of the agreement.
Financial Disclosure
Both parties should make full and frank disclosure of their financial circumstances.
Strongly recommended to avoid later challenges
Advantages & Disadvantages
Understanding the benefits and limitations of BFAs helps you decide if this is the right option for your situation.
Advantages
- No court involvement or filing fees required
- Private - not a public court record
- Can cover property only (not parenting - those require court)
- Flexibility in terms and conditions
- Can protect pre-relationship assets and inheritances
- Provides certainty about financial outcomes
Disadvantages
- Both parties must pay for independent legal advice
- Can be set aside by the court if requirements not met
- May not cover all circumstances (e.g., significant change)
- Cannot contract out of child support obligations
- More easily challenged than consent orders
- No court oversight means less protection
When a BFA Can Be Set Aside
Courts can declare a BFA invalid or set it aside in certain circumstances. Understanding these risks helps you create a more robust agreement.
Fraud
One party obtained the agreement by fraud, including non-disclosure of material matters.
Invalid Advice Certificate
The legal advice certificate was not properly obtained or the advice was inadequate.
Undue Influence or Duress
One party was pressured or coerced into signing the agreement.
Unconscionable Conduct
The circumstances were unconscionable - e.g., one party was in a weaker bargaining position.
Impracticability
Since making the agreement, circumstances have changed making it impracticable to carry out.
Child Hardship
A child of the marriage would suffer hardship if the agreement is enforced.
Material Change
There has been a material change in circumstances relating to the care of a child.
BFA vs Consent Orders
Understanding the key differences helps you choose the right option
| Feature | Binding Financial Agreement | Consent Orders |
|---|---|---|
| Court involvement | No | Yes - must be approved |
| Filing fee | None | $195 |
| Legal advice required | Yes - mandatory for each party | No (but recommended) |
| Typical legal costs | $5,000-$10,000+ total | $0-$3,000 total |
| Can be set aside | Yes - multiple grounds | Very limited grounds |
| Privacy | Private - no court record | Court record (but not public) |
| When available | Before, during, or after relationship | After separation only |
| Can cover parenting | No | Yes |
| Best for | Pre-relationship asset protection | Post-separation settlement |
Frequently Asked Questions
Need Help With Your Financial Agreement?
Splitifi provides templates, checklists, and guidance for BFAs. Always consult with a solicitor for legal advice on your specific situation.