When relationships reach a crossroad, especially in Brisbane, having a clear understanding of legal options like Binding Financial Agreements (BFAs) is crucial. These agreements provide certainty and peace of mind for couples wanting to protect their financial interests and avoid future disputes.
But what exactly is a Binding Financial Agreement, and why should Queensland couples consider one?
Family lawyers can guide you through BFAs, offering clarity and reassurance during uncertain times.
Please note: this is general information only and not legal advice — please contact VM Family Law for accurate, tailored advice. Our full contact details can be found here: https://www.vmfamilylaw.com.au/contact/
What Is a Binding Financial Agreement?
A Binding Financial Agreement (BFA) is a legally enforceable agreement made under the Family Law Act 1975 (Cth). It allows couples — whether married, de facto, or separated — to determine how their property, financial resources, and spousal maintenance will be handled if their relationship ends.
A BFA can be made:
Before marriage (similar to a prenuptial agreement)
During a marriage or de facto relationship
After separation or divorce
These agreements help couples manage financial arrangements without needing a court to decide. Unlike informal agreements, a properly executed BFA is recognised and enforceable under Australian family law if all legal requirements are met.
Why Consider a BFA?
A BFA offers clarity, control, and protection. It allows couples to make financial arrangements that suit their circumstances rather than relying on the court to divide assets.
Common reasons couples choose to enter a BFA include:
Protecting existing assets, inheritances, or family businesses
Defining how property and finances will be divided if separation occurs
Avoiding the uncertainty and cost of litigation
Providing certainty about spousal maintenance and ongoing financial obligations
For many Queensland couples, particularly those with significant assets or complex financial structures, a BFA can prevent conflict and provide lasting financial security.
What Can a BFA Cover?
A Binding Financial Agreement can address a wide range of financial matters, including:
Division of assets: How property, investments, vehicles, and savings will be divided.
Spousal maintenance: Whether one party will pay maintenance, and under what conditions.
Superannuation entitlements: How superannuation will be split or managed.
Financial contributions: Recognition of financial or non-financial contributions from either party or family members.
Provisions for children: BFAs can include financial arrangements related to children, such as education or care costs, although child support is usually dealt with separately.
Legal Requirements for a Valid BFA
To be valid and enforceable, a Binding Financial Agreement must meet specific legal criteria set out in the Family Law Act 1975 (Cth).
These include:
Written Agreement: The BFA must be in writing and signed by both parties.
Independent Legal Advice: Each party must receive independent legal advice before signing. Their respective lawyers must provide a signed certificate confirming that advice was given about the effect of the agreement and its advantages and disadvantages.
Full Financial Disclosure: Both parties must fully disclose their financial position, including all assets, liabilities, and superannuation interests.
Voluntary Agreement: The agreement must be entered into freely and voluntarily, without pressure, duress, or undue influence.
Compliance with the Family Law Act: The agreement must comply with all relevant sections of the Family Law Act to ensure it is legally binding.
Failure to meet these requirements could render the BFA invalid or open to challenge.
How to Create a Binding Financial Agreement
Here’s how the process typically works:
Full Disclosure: Both parties exchange financial information, including assets, debts, and income.
Independent Legal Advice: Each party engages their own lawyer, who provides advice on the legal implications and fairness of the agreement.
Drafting the Agreement: The agreement is prepared to reflect both parties’ intentions regarding property, finances, and maintenance.
Signing and Certification: Both parties sign the document, and each lawyer provides a certificate confirming they have given independent advice.
Execution and Retention: Once signed and certified, the BFA becomes binding and can be stored securely for future reference.
When Can a BFA Be Set Aside?
Even a valid BFA can be set aside by the court in certain circumstances, such as:
If it was obtained through fraud, duress, or unconscionable conduct
If one party failed to disclose significant financial information
If the agreement has become impracticable to carry out
If there has been a material change in circumstances relating to a child that causes hardship
Courts exercise caution when setting aside agreements, but these safeguards exist to prevent unfair outcomes.
BFAs vs. Consent Orders
Both Binding Financial Agreements and Consent Orders deal with property division and financial settlements.
BFAs are private agreements made without court approval, offering flexibility and privacy.
Consent Orders are agreements submitted to the court for approval and have the same force as a court order.
Which option is best depends on your situation. Legal advice should always be sought before choosing between them.
Common Misconceptions
“BFAs are only for the wealthy.”
Not true — any couple can benefit from a BFA to ensure financial clarity and prevent disputes.
“A BFA can’t be changed.”
It can be updated or replaced if both parties agree and follow the same legal requirements.
“A BFA replaces all court involvement.”
A BFA resolves financial matters, but parenting and child support issues may still require separate arrangements.
Frequently Asked Questions (FAQs)
What is the difference between a BFA and a prenuptial agreement?
A prenuptial agreement is a type of BFA made before marriage. Other BFAs can be made during or after the relationship.
Can a BFA be challenged in court?
Yes. It can be challenged if it fails to meet legal requirements or was signed under duress, fraud, or without full disclosure.
Is legal advice mandatory for a BFA?
Yes. Independent legal advice for both parties is essential to make the agreement legally binding.
Does a BFA cover superannuation?
Yes. A BFA can include provisions for splitting or managing superannuation entitlements.
Can a BFA include child support?
While it can include provisions for children’s expenses, formal child support arrangements are usually handled separately under Australian law.
Final Thoughts
A Binding Financial Agreement is an important tool for couples who want financial certainty and independence. It allows you to make informed decisions about your property, superannuation, and maintenance — without the need for court proceedings.
Whether you’re planning for the future or finalising a separation, obtaining clear and independent legal advice is essential.
If you’re considering a Binding Financial Agreement, contact VM Family Law on 07 3447 8966 or visit vmfamilylaw.com.au for professional guidance and compassionate legal support.
Official Information Sources
Federal Circuit and Family Court of Australia – Financial Agreements
https://www.fcfcoa.gov.au/fl/fp/financial-agreementsLegal Aid Queensland – Property and Financial Agreements
https://www.legalaid.qld.gov.au/Find-legal-information/Relationships-and-children/Dividing-your-property/Property-and-financial-agreementsQueensland Government – Families and Legal Relationships
https://www.qld.gov.au/families/legalQueensland Law Society – Family Law and Legal Resources
https://www.qls.com.au/
