Expert Binding Financial Agreement Advice

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A binding financial agreement (BFA) – also called a prenuptial agreement or prenup – is a legal contract between two people that sets out exactly how their assets, liabilities and superannuation will be divided if their relationship ends.

While no one enters a relationship expecting it to end, break-ups do happen. A BFA acts like insurance, giving you certainty over how your property will be split if things go wrong.

Family court can be stressful, time-consuming and expensive. By working with a binding financial agreement lawyer to set up your BFA, you can protect your assets and minimise the need for costly litigation.

Why appoint a binding financial agreement lawyer from Lawpoint?

Drafting a binding financial agreement (BFA) involves strict legal requirements, and courts often set aside BFAs that are poorly drafted or where a party did not receive proper independent legal advice before signing. When this happens, you face costly delays and extra fees to have the agreement redrafted.

You need specialised advice from an experienced binding financial agreement lawyer who will customise your BFA for your unique circumstances and ensure it complies with the Family Law Act 1975. At Lawpoint, our team of family law lawyers including specialist divorce lawyer and property settlement lawyers, will guide you through every step. We understand how a BFA can interact with related issues such as spousal maintenance, de facto relationship separation or divorce.

Lawpoint has extensive experience across all areas of family law, from drafting binding financial agreements to resolving property settlements, and our many client reviews demonstrate our legal expertise and dedication to securing the best outcome for clients.

What are binding financial agreements?

Binding financial agreements (BFAs) are legal contracts governed by the Family Law Act 1975 that allow married and de facto couples to agree on how assets, liabilities and superannuation will be divided, and whether spousal maintenance applies, if their relationship ends. You can enter a BFA at any stage – before marriage, during the relationship or after separation. However, putting it in place early gives both parties certainty from the outset.

Because a BFA is a technical document with strict requirements, it’s essential to engage a binding financial agreement lawyer who can tailor the agreement to your situation. A well-drafted BFA protects each party’s interests, especially when one partner brings significantly more assets into the relationship, by clearly defining how property will be split.

If you already have a BFA and it has been set aside or you need court-based orders, our property settlement lawyers and family law lawyers can guide you through the next steps.

What are the general features of a binding financial agreement?

By entering into a binding financial agreement, you are effectively contracting out of the provisions of the Family Law Act 1975 (Act) that would otherwise determine the division of a couple’s asset pool and entitlements to spouse maintenance upon the breakdown of their relationship.

A binding financial agreement is entered into outside the supervisory jurisdiction of the Federal Circuit Court and Family Court of Australia (Court) in that the binding financial agreement is binding without the need to be registered with the Court or contained within Court approved consent orders.

The agreement can be entered into before marriage, during marriage or after the breakdown of the marriage.

To be valid, a BFA must:

Be in writing and signed by both parties.
Comply with the Family Law Act 1975’s formal requirements.
Ensure each person obtains independent legal advice on the agreement’s effect on their rights, and its advantages and disadvantages.
Include a signed statement from each party’s lawyer confirming that advice was provided.
Be provided as a copy to both parties, including the lawyers’ signed statements.

Lawpoint’s binding financial agreement lawyers and our wider team of family law lawyers and property settlement lawyers, will guide you through every technical requirement. If your BFA is ever challenged, our divorce lawyer, child support lawyer and child custody lawyers are ready to assist.

Advantages

Entering a binding financial agreement offers several key benefits:

Enables a faster, more cost-effective division of assets, liabilities and superannuation without going to court.
Prevents future spouse maintenance claims that can’t be fully excluded through court orders.
Minimises stress and legal expenses by resolving disputes according to the agreement rather than via litigation.
Protects each party’s interests through the requirement of independent legal advice before signing.

Disadvantages

The general disadvantages of parties entering into a binding financial agreement include;

There are more grounds for a court to set aside a binding financial agreement as compared with consent orders.
Binding financial agreements can make it more difficult to make proper provision for various events and all contingencies.
There is no requirement that the binding financial agreement be just and equitable as is the case with consent orders approved by the court.
Financial agreements may be void if they do not strictly comply with particular formalities under the Act. This is why it is essential to ensure that your binding financial agreement is prepared by an experienced binding financial agreement law experienced in family law matters.

Is a binding financial agreement really binding?

It is important to note that in Australia a binding financial agreement is only “binding” up to a point. The Family Law Act 1975 has provisions permitting a party to a binding financial agreement to make an application to set the agreement aside, in limited circumstances. A binding financial agreement is not immune from challenge.

Apart from challenging the document on technical legal grounds if it does not strictly comply with the requirements of the Act, a binding financial agreement can also be set aside in various other circumstances. The broad categories include:

The binding financial agreement was obtained by fraud or duress.
The binding financial agreement was entered into for the purposes of defeating the interest of another party in circumstances where there was reckless disregard for the interest of that person.
The agreement is void or unenforceable.
Since the making of the binding financial agreement one party’s circumstances have changed so as to make it impractical for the agreement or part of the agreement to be carried out.
Since the making of the agreement a material change in circumstances has occurred and those circumstances relate to the care, welfare and development of a child of the relationship and as a result of the change the child or the applicant who cares for the child will suffer hardship if the court does not set the agreement aside.
One party to the agreement engaged in conduct that was in all the circumstances unconscionable in respect of the making of the agreement.

Grounds (i) and (iv) above can be invoked, if for example, one party deliberately undervalues or hides an asset from the other party, such that had the other party have known about the asset or the true value, they would not have entered into the binding financial agreement.

If a court sets aside your BFA, you can then apply for property orders through the normal court process with help from our property settlement lawyers.

Why choose Lawpoint?

Clear Communication

Expect lawyers who speak in plain English, so you can make informed decisions about the future of yourself and your children.

Care

We aim to make the legal process seamless for families. Our offices have a dedicated play area for your children, so you can seek legal advice with comfort.

Determination

We will not disclose confidential information or make any agreements with your partner or their lawyer unless you have clearly agreed to it first.

Efficiency

We take a 360-degree transparent approach to our services. We are accountable to our clients and always provide costs agreements.  

Integrity

We fight determinedly for all of our clients. No matter is too big or too small. We have an extensive network of like-minded barristers who we can call on when required.