Binding Financial Agreements (BFAs) allow couples (both married and de facto) to opt out of the Court’s jurisdiction to deal with property settlements and spousal maintenance.

BFAs may be made at any time, either before the relationship or marriage (a “pre-nup”), during the marriage or relationship or after separation.


BFAs prior to marriage

BFAs in this circumstance were previously known as prenuptial agreements (or pre-nups). These agreements can be drafted to detail what is to occur in the event of separation between the parties. For example, if one party came into the relationship with a house, and both parties agreed that in the event of separation that they would keep the house, this could be detailed in a BFA.

BFAs during the marriage or relationship

Similarly to BFAs prior to marriage, these agreements can also detail any agreement reached between the parties to set out what is to occur in the event of separation.

BFAs following separation

BFAs entered into following separation act in a similar way to Consent Orders in finalising the agreement of division of property reached between the parties. However, because BFAs opt out of the Court’s jurisdiction, it is not necessary for the Court to determine that the agreement reached is “fair”. Because of this, BFAs are sometimes a better option for people where despite both parties being agreeable to the division of the property, there is concern that a Court might not make the order.

What are the requirements of a BFA?

In order for a BFA to be binding, the following must be satisfied:

  • It must be a written agreement setting out how the property and financial resources are to be dealt with upon breakdown of the relationship and/or spousal maintenance;
  • There must be no other financial agreement in place;
  • If the agreement is made after separation, there must be a separation declaration made by at least one of the parties;
  • The agreement must be signed by both parties;
  • If the agreement deals with spousal maintenance, it must set out the amount of maintenance and the ability of each party to support themselves without a pension, allowance or benefit;
  • Both parties must obtain independent legal advice on the effect of the agreement and the advantages and disadvantages of entering into the agreement.