When can you make a binding financial agreement?
Under the Family Law Act 1975, BFAs can be made at three stages:
- Before a marriage or de facto relationship — what people commonly call a prenuptial agreement or prenup
- During the relationship — to clarify how finances work or protect assets acquired since the relationship began
- After separation — to finalise property division and support without going to court
The same framework applies to married and de facto couples, including same-sex partners. The timing affects which section of the Family Law Act applies, but the core requirements are the same.
What must a BFA contain to be legally binding?
A BFA is more than a piece of paper — strict requirements must be met before it is enforceable. The critical ones:
- It must be in writing and signed by both parties
- Each party must receive independent legal advice from a different lawyer, covering the agreement's effect on their rights and whether it is to their advantage
- Each lawyer must sign a statement confirming that advice was given
- A copy of both statements must be provided to both parties
Mediation handles the hardest part — reaching terms both parties genuinely accept. The formal legal steps then make those terms enforceable. We coordinate both so nothing falls through the gaps.
BFA vs consent orders — which is right for you?
| Binding financial agreement (BFA) | Consent orders | |
|---|---|---|
| Court approval required | No — private contract | Yes — court approves it |
| Independent legal advice | Required for each party | Not required (but recommended) |
| When it can be made | Before, during or after the relationship | Only after separation |
| Flexibility | Higher — can exclude some assets | Court applies just and equitable test |
| Typical cost | Higher — two lawyers required | Lower — one court filing fee |
| Best suited to | Pre-relationship protection; maximum flexibility after separation | Most separating couples formalising an agreement |
For most separating couples, consent orders are simpler and cheaper. A BFA is the right choice when you need flexibility a court wouldn't grant, or when you're protecting pre-relationship assets. We help you choose. Compare both in detail →
What can a BFA cover?
- The family home and all real property
- Superannuation — splitting or quarantining it
- Savings, investments, shares and businesses
- Debts, mortgages and liabilities
- Spousal maintenance — ongoing financial support
- Pre-relationship and inherited assets
Note that BFAs cannot deal with parenting arrangements — those must be resolved separately through a parenting plan or consent orders.
Can a BFA be challenged or overturned?
Yes, in limited circumstances. A court can set aside a BFA if there was fraud or non-disclosure, if one party was under duress or couldn't understand it, if proper legal advice wasn't obtained, or if circumstances have changed dramatically (such as a child being born after the agreement). Agreements reached fairly through mediation — where both parties had full disclosure, proper legal advice, and genuine input into the terms — are far less likely to be challenged. That's exactly why mediation is the smarter way to reach the terms first.
Why negotiate a BFA through mediation?
Because agreements reached adversarially are more likely to breed resentment and face legal challenge later. When both parties understand and genuinely accept the terms — because they negotiated them in a structured, fair process — those terms stick. A mediator also helps both sides avoid common mistakes: overlooking assets, misunderstanding superannuation splits, or agreeing to maintenance terms that won't work in practice. The lawyers then make it binding. See spousal maintenance mediation → or property settlement mediation →