Binding financial agreement workflow
Binding financial agreements are powerful but brittle. The High Court in Thorne v Kennedy [2017] HCA 49 and a steady line of set-aside cases make it clear that disclosure, independent advice, and the absence of duress are non-negotiable. A disciplined workflow is the best protection.
This is an 8-step workflow for preparing a binding financial agreement under Part VIIIA of the Family Law Act 1975 (Cth). The agreement ousts the court's s 79 jurisdiction if every formal requirement is met, so procedure is everything.
Before you start
- Identify the correct section (90B pre-marriage, 90C during marriage, 90D post-divorce, 90UB/UC/UD de facto equivalents)
- Signed costs agreement acknowledging the set-aside risks
- Client instructions on the commercial outcome sought
- Confirmation the other party has separate, independent legal advice
The workflow
Identify the correct BFA section
Determine whether the agreement is pre-marriage (s 90B), during marriage (s 90C), post-divorce (s 90D) or de facto (ss 90UB-90UD). The wrong section is fatal.
Obtain full financial disclosure
Collect full disclosure from both parties — assets, liabilities, income, super, interests in trusts and companies. Non-disclosure is a leading ground for set-aside.
Draft the agreement and schedules
Draft the operative clauses (property, super, spousal maintenance exclusion if any) and attach schedules of assets, liabilities, and financial resources for each party.
Prepare the independent advice certificate
Prepare the lawyer's statement under s 90G(1)(b) confirming advice was provided on the effect of the agreement on the party's rights and its advantages and disadvantages.
Send to the other party's lawyer
Send the draft to the other party's independent lawyer with sufficient time for genuine negotiation. Keep a clear trail of drafts and turnaround times.
Provide independent legal advice in person
Meet the client, walk through the agreement clause by clause, explain the s 79 rights being given up, and document the advice given and questions asked.
Parties sign and exchange certificates
Both parties sign. Each lawyer provides a signed statement of advice. Original signed copies and certificates are exchanged.
Deliver originals and diarise review
Provide the client with the signed original and a file copy. Diarise review points (marriage, separation, birth of a child) where the agreement may need reviewing.
What you will have at the end
A Part VIIIA binding financial agreement that — if all formal requirements are met and no set-aside ground applies — ousts the court's s 79 property settlement jurisdiction between the parties.
Common issues
- Signing too close to a wedding, risking undue influence or duress findings
- Incomplete disclosure leading to set-aside under s 90K
- Lawyer's advice certificate wording not matching s 90G
- Wrong section used — e.g. 90C drafted for a couple not yet married
- No meaningful negotiation trail on the file
Run this workflow on a real matter
Quillio drafts Part VIIIA agreements in the correct section, builds the disclosure schedules from raw documents, and produces a s 90G-compliant advice certificate template. See /practice-areas/family-lawyers or /free-trial.
General guide only — not legal advice. BFAs carry significant set-aside risk; tailor advice to the client's circumstances and confirm current law at the time of drafting.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
Start your free trial