Binding Financial Agreement Lawyer
At Shan Lawyers, we assist individuals and couples with Binding Financial Agreements by providing practical legal advice tailored to their circumstances. Whether you are planning for the future, protecting assets before marriage or a de facto relationship, or entering into a financial agreement after separation, our team can help you prepare an agreement that complies with the requirements of Australian family law.
Working with an experienced Binding Financial Agreement Lawyer can help minimise uncertainty, reduce the risk of future disputes, and ensure your agreement reflects your intentions while meeting the legal requirements for enforceability.
Need Advice About a Binding Financial Agreement?
Whether you are considering a Binding Financial Agreement before, during or after a relationship, obtaining legal advice early can help you understand your rights and obligations. At Shan Lawyers, we provide practical guidance to help you make informed decisions and prepare agreements that are tailored to your individual circumstances.
Binding Financial Agreements: What You Need to Know
A Binding Financial Agreement (BFA) is a legally enforceable agreement between parties, commonly used in family law matters. It sets out how assets, liabilities and financial resources will be dealt with in the event of a relationship breakdown, such as separation or divorce. Binding Financial Agreements can address a range of financial matters, including property division, spousal or de facto maintenance, and superannuation.
Commonly referred to as a prenuptial agreement when entered into before marriage, a Binding Financial Agreement can also be made during a relationship or after separation, depending on your circumstances.
What Is a Financial Agreement?
A Financial Agreement is a contract between two or more parties made under the provisions of the Family Law Act. Commonly, the agreement is entered into by married couples or de facto partners, including same-sex couples.
If properly prepared and executed, a Financial Agreement allows the parties to determine how certain financial matters will be managed without asking the Court to decide those issues. For many couples, it also provides greater certainty and property protection by clearly recording their financial arrangements.
Working with an experienced Financial Agreement Lawyer helps ensure the agreement satisfies the legal requirements and accurately reflects the intentions of both parties.
When Is a Binding Financial Agreement Legally Binding?
For a Financial Agreement to be legally binding, it must satisfy specific technical requirements. These include the following:
(a) The Agreement must be in writing and signed by both parties.
(b) Before signing the agreement, each party must have received independent legal advice about the effect of the agreement on their rights and the advantages and disadvantages of entering into it.
(c) Each party must receive a Statement of Independent Legal Advice from their lawyer.
(d) A copy of the lawyer’s Statement of Legal Advice must be provided to each party or their legal representative.
(e) The Agreement must not have been terminated or set aside by the Court.
Because Binding Financial Agreements involve strict legal requirements, careful preparation is essential. A Binding Financial Agreement Lawyer can assist in ensuring the agreement is properly drafted and complies with the Family Law Act, reducing the risk of future challenges.
When Can You Enter Into a Binding Financial Agreement?
A Binding Financial Agreement can be created at various stages of a relationship, with different provisions of the Family Law Act applying depending on when the agreement is made.
For example:
- Before marriage (commonly referred to as a prenuptial agreement), the agreement is generally prepared under section 90B of the Family Law Act.
- During a marriage or after separation, the agreement is generally prepared under section 90C of the Family Law Act.
- After divorce, the agreement is generally prepared under section 90D of the Family Law Act.
Similarly, the Family Law Act provides specific provisions for de facto relationships, allowing eligible couples to enter into Binding Financial Agreements before, during or after their relationship.
A Financial Agreement may also include provisions dealing with superannuation, or a separate superannuation agreement can be prepared where appropriate.
When Can a Binding Financial Agreement Be Set Aside?
Although Binding Financial Agreements are intended to provide certainty, there are circumstances where the Court may set aside an agreement (s90 K or s90 UM).
Some of the grounds include:
(a) The agreement was obtained by fraud, including the non-disclosure of a material matter. For example, one party intentionally fails to provide full and frank financial disclosure to reduce the other party’s entitlement during a property settlement.
(b) The agreement was entered into for the purpose of defrauding or defeating a creditor, or with reckless disregard for the interests of a creditor.
(c) The agreement was entered into for the purpose of defrauding or defeating another person.
(d) The agreement is void, voidable or otherwise unenforceable.
(e) Circumstances have changed since the agreement was made, making it impracticable for all or part of the agreement to be carried out.
(f) Since the agreement was executed, a material change in circumstances has occurred, such as significant changes affecting spousal or de facto maintenance, the welfare of a child, or other circumstances that would result in hardship if the agreement remained in place.
Because every situation is different, obtaining legal advice before entering into a Binding Financial Agreement can help reduce the risk of future disputes and improve the likelihood that the agreement will remain enforceable.
Why Choose Shan Lawyers for Your Binding Financial Agreement?
Preparing a Binding Financial Agreement requires careful consideration of your financial circumstances and compliance with the technical requirements of the Family Law Act.
At Shan Lawyers, our team provides practical, tailored advice to individuals and couples seeking to protect their financial interests before, during or after a relationship. We take the time to understand your circumstances, explain your legal options, and prepare agreements that are clear, comprehensive and tailored to your needs.
Whether you are seeking to protect premarital assets, formalise financial arrangements during a relationship, or prepare a financial agreement after separation, we are committed to providing practical legal guidance at every stage.
Speak With a Binding Financial Agreement Lawyer
If you are considering a Binding Financial Agreement or would like advice about whether one is appropriate for your circumstances, Shan Lawyers is here to help.
Our experienced Binding Financial Agreement Lawyers assist clients across Melbourne with preparing, reviewing and advising on financial agreements in accordance with Australian family law. We provide clear, practical advice to help you make informed decisions and protect your financial future.
Contact Shan Lawyers today to arrange a confidential consultation with our family law team.
Frequently Asked Questions:
A Binding Financial Agreement must comply with strict requirements under the Family Law Act 1975 (Cth).
Generally, the agreement must be:
- In writing
- Signed by both parties
- Supported by independent legal advice for each party before signing
- Accompanied by signed statements from each party’s lawyer confirming that advice was provided
If these requirements are not properly met, the agreement may not be binding or enforceable.
Yes. Although Binding Financial Agreements are intended to provide certainty, they can be challenged in specific circumstances.
A Court may set aside an agreement where there has been:
- Non-disclosure of significant financial information
- Fraud or misrepresentation
- Undue influence, duress or unconscionable conduct
- A material change in circumstances relating to the care of a child
- Impracticability in carrying out the agreement
- Serious defects in the agreement or the legal advice process
Careful drafting, full disclosure and proper independent legal advice are essential.
A Binding Financial Agreement does not automatically change if circumstances later become different.
Events such as having children, changes in income, illness, business changes or financial hardship may affect whether the agreement remains practical. In limited circumstances, a significant change may provide grounds to review or challenge the agreement.
Yes. A Binding Financial Agreement can deal with current and future assets, including inheritances, anticipated wealth, business interests, trusts and future property acquisitions.
The drafting must be clear, specific and tailored to the parties’ circumstances to reduce the risk of future disputes.
Understanding the agreement is critical. Each party must receive independent legal advice about the effect of the agreement and the advantages and disadvantages of entering into it.
If there are concerns that a party did not understand the agreement, was pressured, or did not receive adequate advice, the agreement may be vulnerable to challenge.
Yes. A Binding Financial Agreement can allow parties to resolve financial matters privately without applying to the Court.
However, it must be properly prepared and legally compliant. If the agreement is poorly drafted or the required legal process is not followed, disputes may still arise later.
Generic templates can create significant legal risk.
Binding Financial Agreements require careful consideration of each party’s assets, liabilities, income, business interests, superannuation, future financial expectations and personal circumstances. A template may fail to address key issues, resulting in uncertainty or enforceability problems.
Both can formalise financial arrangements, but they operate differently.
Consent Orders are filed with the Federal Circuit and Family Court of Australia and must be approved by the Court as just and equitable.
Binding Financial Agreements are private contracts between the parties. They are not reviewed by the Court for fairness when signed, which makes independent legal advice and careful drafting particularly important.
Legal advice should be obtained before signing or negotiating any Binding Financial Agreement, particularly where there are significant assets, business interests, inheritances, trusts, superannuation or future financial considerations.
An experienced family lawyer in Melbourne can advise whether a Binding Financial Agreement is appropriate and ensure it is structured to protect your long-term interests.