Binding Financial Agreement Lawyers Melbourne
Secure your financial future with a pre-nuptial, during-relationship or post-separation agreement. We draft binding financial agreements that meet the strict Family Law Act requirements — so they hold up when it matters.
What is a BFA?
Protect your assets with certainty
A binding financial agreement (BFA) sets out how property and finances will be dealt with if a relationship ends — without going to court.
- protecting pre-existing assets and inheritances
- defining financial responsibilities during a relationship
- avoiding court in financial settlements
- ensuring a clear division of assets after separation
When to make one
Before, during or after
A BFA can be made at any stage of a married or de facto relationship.
Before the relationship
A ‘prenup’ made before marriage (section 90B of the Family Law Act) or before a de facto relationship (section 90UB), protecting assets you bring into the relationship.
During the relationship
Made during a marriage (section 90C) or de facto relationship (section 90UC), for example after an inheritance, a business purchase or when blending families.
After separation
Made after separation or divorce (section 90D, or 90UD for de facto couples) to formalise a property settlement privately. Consent orders are an alternative.
The process
How we prepare your BFA
Careful drafting and proper advice are what make an agreement hold up.
1. Initial advice
We discuss your goals, what you want to protect and whether a binding financial agreement or consent orders better suits your situation.
2. Financial disclosure
Both parties exchange full details of assets, debts, income and superannuation. Failing to disclose a material matter is one of the main reasons agreements are set aside.
3. Drafting
We draft the agreement, or review a draft prepared by your partner’s lawyer, so it meets the Family Law Act requirements and clearly deals with every asset and contingency.
4. Negotiation
Each party’s lawyer negotiates the terms until both of you are satisfied with what the agreement says and how it will work in practice.
5. Independent legal advice
Each party gets advice from their own lawyer about the effect of the agreement on their rights and its advantages and disadvantages. Each lawyer then signs a statement confirming that advice was given.
6. Signing and safekeeping
Both parties sign. The original goes to one party and a copy to the other. Store it safely and review it when life changes, such as having children.
The legal requirements
When a BFA is binding and when it can be set aside
Section 90G (marriages) and section 90UJ (de facto relationships) set out strict requirements.
- be in writing and signed by both parties
- be signed only after each party has received independent legal advice about its effect on their rights and its advantages and disadvantages
- be accompanied by a signed statement from each party’s lawyer confirming that advice was given (often called the independent legal advice certificate)
- not have been terminated or set aside
- fraud, including non-disclosure of a material matter
- duress, undue influence or unconscionable conduct
- the agreement being void, voidable or unenforceable
- circumstances arising that make it impracticable to carry out
- a material change relating to the care of a child, causing hardship
Costs
How BFAs are priced
The cost depends on complexity, not a one-size price.
- What affects cost: the number and type of assets, whether a business, trust or superannuation is involved, whether we draft the agreement or review one prepared by the other side, and how much negotiation is needed.
- Written costs agreement: after a free 15-minute call, you receive a written costs agreement before work starts, with fixed fees for defined stages discussed upfront.
- Two lawyers: each party must have their own lawyer, so your partner pays separately for their independent advice.
- Early advice: a 30-minute conference is $150 and a 60-minute conference is $385.
FAQs
BFA questions
Can a binding financial agreement be overturned?
Yes, in limited circumstances — such as fraud, non-disclosure, duress, unconscionable conduct, a material change in circumstances relating to children, or failure to meet the legal requirements.
Do both of us need our own lawyer?
Yes. Each party must receive independent legal advice from their own lawyer before signing.
BFA or consent orders — which is better?
It depends. Consent orders are reviewed by the court; BFAs are private and can be made before or during a relationship. We’ll explain the pros and cons for your situation.
Is a binding financial agreement filed with the court?
No. A BFA is a private contract. It is not filed with or approved by the court, which is why the original must be kept safely and the strict signing and advice requirements matter so much.
Can de facto couples make a BFA?
Yes. De facto couples can make financial agreements before, during or after their relationship under sections 90UB, 90UC and 90UD of the Family Law Act, with the same independent legal advice requirements as married couples.
Can a BFA deal with parenting or child support?
No. A BFA covers property, finances, superannuation and spousal maintenance. Parenting arrangements are decided by what is in the children’s best interests, and child support is dealt with under separate child support laws.
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