A financial agreement is one of the few moments in family law where you get to make a decision calmly and in advance, rather than in the middle of a crisis. Whether you are protecting assets before a new relationship, formalising things after years together, or drawing a clean line after separating, a well-made agreement can give real peace of mind. The catch is that a Binding Financial Agreement is only as good as the way it is prepared — and a poorly drafted one can come apart at the exact moment you are relying on it.
What a Binding Financial Agreement actually is
A Binding Financial Agreement (BFA) is a contract under the Family Law Act 1975 (Cth) that records how property, superannuation and sometimes spousal maintenance will be dealt with. Married couples make them under sections 90B to 90KA; de facto couples under sections 90UB to 90UN. The same tool is called a prenup when made before a relationship, a postnup during it, and a separation agreement when made after.
Done correctly, a BFA lets you settle these questions privately and stay out of court altogether — there is no filing fee and no need for a registrar to approve it, unlike consent orders. That privacy and control is the main reason people choose them.
The independent legal advice rule — why both of you need your own lawyer
For a BFA to be binding, the Family Law Act requires that each party receives independent legal advice before signing, and that a statement confirming that advice is provided. This is not a formality to rush — it is the single biggest reason agreements are upheld or struck down. Because the advice must be independent, I act for one party only; your partner must use their own lawyer.
I am always honest about whether a BFA is even the right tool for you. For some couples consent orders are a better fit; for others a BFA is exactly right. You should expect that conversation at the first meeting, not a sales pitch.
When agreements get set aside — and how to make one that holds
A court can set aside a BFA under section 90K (or 90UM for de facto couples) for reasons including a failure to disclose significant assets, fraud, duress, undue influence, or where the agreement was unconscionable. The most common real-world killer is a prenup signed under pressure days before the wedding, or one where assets were not fully disclosed.
A durable agreement is built on full financial disclosure, genuine time for each party to get advice and reflect, and careful drafting that anticipates how circumstances might change — children, illness, a large change in wealth. That is the work that makes the difference between an agreement that protects you and one that gives false comfort.
How I handle a binding financial agreements matter
- 1Free initial consultation — honest advice on whether a BFA is the right tool for you
- 2Full financial disclosure between the parties, handled properly
- 3Careful drafting (or review) of the agreement and the independent advice statement
- 4Clear explanation of what the agreement does and does not protect, before you sign
- 5Coordination with your partner's lawyer so the agreement is correctly executed
Frequently asked questions
Is a prenup legally binding in Australia?
Yes — a prenup in Australia is legally binding when it is made as a Binding Financial Agreement under the Family Law Act 1975 (Cth) and the strict requirements are met, most importantly that each party received independent legal advice before signing. An agreement that skips those requirements, or where assets were not disclosed, can be set aside by a court.
Do both people need their own lawyer for a BFA?
Yes. For a Binding Financial Agreement to be valid under the Family Law Act 1975 (Cth), each party must receive independent legal advice from their own lawyer before signing. The same lawyer cannot advise both people, which is why I act for one party only and your partner engages their own solicitor.
Can a Binding Financial Agreement be overturned?
It can, in limited circumstances. A court can set aside a Binding Financial Agreement under section 90K of the Family Law Act 1975 (Cth) for reasons such as non-disclosure of significant assets, fraud, duress, undue influence or unconscionable conduct. Full disclosure, genuine time to take advice, and careful drafting are what make an agreement hold.
What is the difference between a BFA and consent orders?
A Binding Financial Agreement is a private contract requiring independent legal advice but no court approval, while consent orders are approved and sealed by the Federal Circuit and Family Court. BFAs offer privacy and flexibility; consent orders generally offer stronger finality. The right choice depends on your situation, and I will talk you through both.
Reviewed by Elisa Rothschild BA/LLB — Principal Lawyer, Fogarty Oliver Rothschild. Admitted to legal practice in Victoria. Last reviewed 2026-06-21.
This page is general legal information about binding financial agreements in Victoria, Australia. It is not legal advice for your specific situation. For advice on your matter, book a free initial consultation.