Your Questions, Answered

A Binding Financial Agreement (BFA) is a legally enforceable contract made under the Family Law Act 1975 (Cth) that sets out how a couple’s property, financial resources, and spousal maintenance will be dealt with in the event of a relationship breakdown. BFAs can be made before, during, or after a marriage or de facto relationship. They provide an alternative to court-based property settlements, giving both parties certainty and privacy over how their financial affairs will be resolved.

In Australia, the term “prenup” (prenuptial agreement) is not a formal legal term. What Australians commonly call a prenup is formally known as a Binding Financial Agreement made under Section 90B of the Family Law Act 1975 — an agreement made before marriage. However, BFAs are broader than prenups: they can also be made during a marriage (Section 90C) or after divorce (Section 90D), as well as for de facto relationships under Part VIIIAB. The term BFA encompasses all of these scenarios.

Yes, when properly executed, a BFA is legally binding and enforceable across Australia (in jurisdictions where BFA provisions apply). For a BFA to be binding, it must be in writing, signed by both parties, and each party must have received independent legal advice from a qualified legal practitioner about the effect of the agreement on their rights and the advantages and disadvantages of making the agreement. A certificate from each lawyer must be attached to the agreement.

A court can set aside a BFA under certain circumstances. These include: fraud (including non-disclosure of material matters), the agreement being void, voidable, or unenforceable under contract law, circumstances that have changed materially since the agreement was made (making it impracticable to carry out), or if a party engaged in unconscionable conduct. This is why expert drafting, full financial disclosure, and proper independent legal advice are critical to ensuring a BFA’s long-term enforceability.

Yes. Under the Family Law Act 1975, both parties must receive independent legal advice (ILA) from separate, qualified legal practitioners before signing a BFA. Each lawyer must sign a certificate stating that they have provided advice about the effect of the agreement on that party’s rights and about the advantages and disadvantages of making the agreement. This is a mandatory legal requirement — a BFA signed without proper ILA certificates can be declared non-binding by a court.

Without a BFA, if your relationship ends, the division of your property and financial resources will be determined either by negotiation between the parties (and their lawyers), mediation, or ultimately by the Family Court or Federal Circuit and Family Court under Section 79 of the Family Law Act. The court considers a range of factors including financial and non-financial contributions, future needs, and what is “just and equitable.” This process can be lengthy, costly (often $50,000–$500,000+), emotionally draining, and the outcome is uncertain as it depends on judicial discretion.

Our process involves four simple steps: (1) Complete our confidential online assessment form — free and no obligation. (2) Have a personalised video consultation with a senior family lawyer to discuss your needs and receive a fixed-fee quote. (3) Your BFA is expertly drafted and refined until you’re completely satisfied. (4) Both parties receive independent legal advice, lawyers issue certificates, and the agreement is signed and becomes legally binding. The entire process can be completed online from anywhere in our service areas. Learn more about our process.

The typical timeline is 2–4 weeks from initial assessment to signed agreement. Simple, straightforward matters can be completed in as little as 2 weeks. More complex situations involving multiple entities, trusts, international assets, or significant negotiation between parties may take 4–8 weeks. The timeline also depends on how quickly both parties engage with the process and complete the required independent legal advice.

We draft the BFA and provide legal advice to the initiating party. However, the other party must receive independent legal advice from a separate lawyer — this is a legal requirement to ensure the agreement is binding. We can coordinate referrals to experienced family lawyers for your partner’s independent legal advice, making the process as smooth as possible for both parties.

We service clients across New South Wales, Victoria, Queensland, Tasmania, the Australian Capital Territory, and the Northern Territory. We do not currently service Western Australia or South Australia, as these jurisdictions have separate legislative frameworks. Our strongest presence is in Victoria, particularly Melbourne and Geelong, though our online process means we can assist clients throughout our service areas.

Confidentiality is fundamental to our service. All client information is protected by legal professional privilege and strict privacy obligations. Our online systems use bank-level encryption, we conduct all consultations via secure video links, and documents are shared through encrypted channels. We never discuss client matters with third parties without express consent, and all data is stored in compliance with Australian Privacy Principles.

A BFA requires both parties to voluntarily agree and sign. If your partner is reluctant, we recommend approaching the conversation carefully — a BFA protects both parties, not just one. We can provide guidance on how to raise the topic sensitively. In some cases, a consultation with us can help your partner understand how the agreement also protects their interests. Ultimately, however, a BFA cannot be forced — both parties must enter into it freely.

Yes, business protection is one of the most common reasons clients seek a BFA. A properly drafted BFA can ring-fence your business from the relationship property pool, protecting business equity, goodwill, intellectual property, shares, partnership interests, and operational control. This is particularly important for business owners, as without a BFA, a court has wide discretion to include business assets in a property settlement — potentially forcing a sale or transfer of business interests.

A BFA can include provisions dealing with superannuation, including self-managed superannuation funds (SMSFs). Superannuation is treated as a financial resource under the Family Law Act and can be “split” between parties in a property settlement. A BFA can specify how superannuation is to be dealt with, potentially excluding it from the pool or setting agreed split percentages. For SMSFs with complex investment structures, specialist drafting is essential to ensure the provisions are legally effective.

Yes. A BFA can include provisions dealing with spousal maintenance — the financial support one party may be required to provide to the other after separation. The agreement can specify whether maintenance will be payable, the amount and duration, or that neither party will have a claim for maintenance against the other. Including clear maintenance provisions helps avoid future disputes and provides certainty for both parties.

A well-drafted BFA can address assets acquired after the agreement is signed. This is typically handled through carefully worded provisions that specify how future assets — including property purchases, business growth, investment returns, and income — will be treated in the event of separation. The agreement can differentiate between assets acquired jointly and individually, and set out formulas or principles for their division.

A BFA can include provisions dealing with international assets. However, enforceability across jurisdictions can be complex. While the BFA itself is governed by Australian law, the practical enforcement of provisions relating to overseas assets may depend on the laws of the country where those assets are located. We can draft provisions that address international holdings and, where necessary, recommend engaging local legal advisors in relevant jurisdictions to ensure comprehensive protection.

Yes, a BFA can cover cryptocurrency and digital assets including Bitcoin, Ethereum, NFTs, and other digital holdings. As these assets become more prevalent, it is important to include specific provisions that address their valuation methodology, disclosure requirements, and treatment upon separation. Given the volatility and unique characteristics of digital assets, specialist drafting is important to ensure the provisions remain practical and enforceable.

For a BFA to be legally valid under the Family Law Act 1975, it must meet several requirements: (1) It must be in writing and signed by both parties. (2) Each party must have received independent legal advice from a qualified legal practitioner about the effect of the agreement on their rights and the advantages and disadvantages of entering into it. (3) A certificate from each lawyer must be attached to, or form part of, the agreement. (4) Each party must have been provided with a copy of the agreement. (5) The agreement must not have been obtained through fraud, duress, or unconscionable conduct.

Independent legal advice (ILA) means advice given to a party by their own, separate lawyer — not the lawyer who drafted the agreement or who is acting for the other party. It is a mandatory legal requirement under the Family Law Act 1975 because it ensures each party understands the effect of the BFA on their legal rights and the advantages and disadvantages of entering into it. Without proper ILA, the agreement can be declared non-binding by a court. The advising lawyer must sign a certificate confirming the advice was provided.

Full and frank disclosure means that both parties must honestly and completely disclose all of their assets, liabilities, income, and financial resources when entering into a BFA. This includes property, superannuation, business interests, debts, and any other financial matters. Failure to provide full disclosure can be grounds for a court to set aside the agreement. It is one of the most important aspects of ensuring your BFA remains enforceable over the long term.

Yes, a BFA can be varied or terminated after it has been signed, but only by entering into a new BFA that replaces or amends the original. The new agreement must also meet all the legal requirements — both parties must sign, and both must receive fresh independent legal advice with new certificates. A BFA can also be terminated by a subsequent agreement between the parties. It is common for couples to update their BFA when significant life events occur, such as the birth of children, major asset acquisitions, or changes in financial circumstances.