Binding Financial
Agreements
One of the most powerful tools in family law — and one of the most easily invalidated. We draft and advise on BFAs that are properly prepared and built to hold.
A binding financial agreement is one of the most powerful — and most misunderstood — documents in family law. Under the Family Law Act 1975, a BFA can set out in advance how assets will be divided if a relationship ends. But the requirements are strict, and courts set aside poorly prepared agreements regularly. Independent legal advice is mandatory — for both parties. Purcell and Purcell Pty Ltd ensures your agreement is prepared correctly the first time.
Binding financial agreement services
Commonly known as prenuptial agreements, these are entered into before a marriage or de facto relationship. They set out how assets will be divided if the relationship ends. We advise both parties — each independently — on what the agreement means before it is signed.
A BFA can be entered into at any point during a marriage or de facto relationship. Circumstances change — inheritance, business interests, or a second marriage may make an agreement prudent even after a relationship is established.
After separation, a BFA can formalise how property is divided without needing a court order. This is an alternative to consent orders and can be quicker and more flexible in certain circumstances. We advise on when each approach is appropriate.
If you have been given a BFA to sign by your partner, you must receive independent legal advice before signing. We review the agreement on your behalf, advise you of your rights and the effect of the agreement, and certify that we have done so — a legal requirement for the agreement to be binding.
Where one or both parties own a business, company shares, or trust interests, a BFA needs careful drafting to address those structures. We work with your accountant or financial adviser to ensure the agreement reflects the true value and nature of the assets involved.
A BFA can be set aside by the court if it was obtained by fraud, under duress, or if enforcing it would be unconscionable. Agreements can also be varied by written agreement. We advise on whether an existing BFA is enforceable and what options are available if it is not.
Prepared correctly —
or not at all.
A BFA that is not prepared correctly is worse than no agreement at all. Courts have a well-established history of setting aside agreements where the legal advice was inadequate, where there was pressure to sign, or where the document did not meet the requirements of the Family Law Act.
We take the preparation of binding financial agreements seriously. Both parties must receive independent legal advice — not just a tick in a box, but genuine advice about what they are agreeing to and what they are giving up. We provide that advice clearly and thoroughly.
If you are entering a relationship and want to protect assets you are bringing into it, or if you are separating and want to finalise property without going to court, we will advise you on whether a BFA is the right instrument and prepare it properly if so.
Binding financial agreements FAQs
Yes, in practical terms. In Australia, there is no formal legal term "prenuptial agreement" — instead, a binding financial agreement entered into before a marriage or de facto relationship serves the same purpose. The BFA sets out what happens to assets and financial resources if the relationship ends. The key difference from many overseas "prenups" is that Australian law has strict requirements — including mandatory independent legal advice for both parties — for the agreement to be binding.
Yes. This is a mandatory requirement under the Family Law Act 1975. Each party must receive independent legal advice from a different lawyer about the effect of the agreement and the advantages and disadvantages of signing it. Each lawyer must then provide a signed certificate confirming this advice was given. An agreement without these certificates is not binding.
Yes. A court can set aside a BFA if it was obtained by fraud (including non-disclosure of assets), if a party was under duress or undue influence when signing, if a party did not genuinely receive independent legal advice, if circumstances have changed since signing such that enforcing it would be unjust, or if the agreement is unconscionable. This is why careful preparation — and genuine independent advice — is essential.
Yes. Superannuation can be dealt with in a BFA, though the rules around superannuation splitting are specific and technical. A BFA can address how superannuation interests are to be divided if the relationship ends. We ensure any agreement properly addresses superannuation in a way that is consistent with the relevant superannuation legislation and the rules of the specific fund involved.
Both are ways to formalise property division after separation. Consent orders are filed with and approved by the Federal Circuit and Family Court — once approved, they have the force of a court order and can be enforced directly. A BFA does not involve the court and is a private contract between the parties. Consent orders are generally considered more secure; BFAs can be appropriate where parties want speed and privacy. We advise on which approach is better for your circumstances.
De facto couples — including same-sex couples — can enter into binding financial agreements under Part VIIIAB of the Family Law Act 1975. The requirements are essentially the same as for married couples. The key threshold is that the de facto relationship must have the characteristics recognised by the Act — including cohabitation on a genuine domestic basis, though the definition does not require a minimum period for a BFA entered into before or during the relationship.
Without a BFA or consent orders, property division is governed by the Family Law Act 1975, which requires a fair division based on contributions and future needs. There is no automatic 50/50 split. Time limits apply — married couples must finalise property within 12 months of a divorce order; de facto couples within 2 years of separation. See our property settlement page for more detail.
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