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How to make a binding financial agreement in Australia

In short

A binding financial agreement (BFA) is a written contract under sections 90B-90KA of the Family Law Act 1975 setting out how property and financial resources will be divided in the event of separation. Strict formal requirements apply — including independent legal advice for both parties — for the agreement to be binding.

Who: Couples (married or de facto) wanting to formalise their financial arrangements before, during, or after the relationship. Most commonly used as a pre-cohabitation or pre-marriage agreement.
Where: BFAs are private agreements between the parties. They are not lodged with any court or registry.
Time: 2-6 weeks from initial instructions to signed agreement, depending on the complexity and the parties' availability.
Fees: No filing fee — BFAs are private agreements not lodged with the court. Legal fees vary based on the complexity (typically $3,000-$15,000 for a standard BFA).
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Legal basis

The framework

BFAs are governed by Part VIII Division 4 of the Family Law Act 1975 (Cth) for married couples, and Part VIIIAB Division 4 for de facto couples. The formal requirements are strict and have been the subject of significant case law.

10 steps

The process

1

Confirm the relationship type

Determine whether the agreement is for a marriage (s 90B), during marriage (s 90C), after marriage (s 90D), or for a de facto relationship (s 90UB-90UD).

Lawyer
2

Take instructions on assets and intentions

Cover both parties' assets, liabilities, and intentions for how the property would be divided. Document everything.

Lawyer
3

Disclose all assets and liabilities

Both parties must provide full and frank disclosure of their financial position for the agreement to be valid.

Both parties
4

Draft the agreement

Draft the agreement covering the financial matters intended to be addressed — typically property division, spousal maintenance, and superannuation.

Lawyer
5

Each party obtains independent legal advice

Each party must obtain independent legal advice before signing — covering the effect of the agreement and the advantages/disadvantages.

Both parties (separate lawyers)
6

Each lawyer issues a certificate

Each lawyer issues a certificate confirming they provided the required advice. The certificates are attached to the agreement.

Both lawyers
7

Sign the agreement

Both parties sign the agreement. Each party retains an original.

Both parties
8

Store the agreement safely

Each party stores their original safely. The lawyers also retain copies.

Both parties
9

Review periodically

Recommend periodic review of the agreement, particularly after significant life events (marriage, children, asset changes).

Both parties
10

Amend if circumstances change

A new agreement is required for material changes. The original BFA can be terminated by a separation declaration or a new BFA.

Both parties
Forms required

Forms and templates

  • Binding Financial Agreement (no prescribed form)
Avoid these mistakes

Common mistakes

  • Failing to provide full and frank disclosure
  • One lawyer purporting to advise both parties (must be independent)
  • Missing or defective certificates of legal advice
  • Drafting that does not clearly identify the property covered
  • Not addressing changes in circumstances
Use with Quillio

Get this process right with Quillio

Quillio drafts binding financial agreements in standard format, helps prepare the disclosure schedules, and identifies the certificate requirements. See /practice-areas/family-lawyers or start a free trial.

BFAs have been the subject of significant case law and are easy to get wrong. Always obtain specialist family law advice before drafting or relying on a BFA.

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