Binding Financial Agreements: Disclosure and Advice

What a Binding Financial Agreement is

A binding financial agreement is made under Part VIIIA of the Family Law Act 1975 for marriages or Part VIIIAB for qualifying de facto relationships. Western Australian de facto agreements use separate state legislation, explained below.

A BFA can be made before a relationship, during it or after separation. Married couples use different provisions before marriage, during marriage and after a divorce order. Separation before divorce still falls within the during-marriage provision.

A BFA does not need to go to court when signed. A judge does not assess the proposed division at that point. A properly made agreement can exclude the court’s property or maintenance jurisdiction for the matters it covers. The Federal Circuit and Family Court of Australia’s financial agreements guidance explains that private-contract route.

Requirements That Make It Binding

Section 90G sets the ordinary binding requirements for a marriage financial agreement. Section 90UJ contains corresponding requirements for federal de facto agreements.

• All parties sign the agreement.
• Before signing, each spouse party receives independent legal advice about the agreement’s effect on their rights and the advantages and disadvantages of making it.
• Each spouse party receives their lawyer’s signed statement confirming that advice, either before or after signing.
• A copy of each statement goes to the other spouse party or their lawyer.
• The agreement has not been terminated or set aside by a court.

The advice must address that person’s circumstances and the actual agreement. A witness signature or a certificate copied from a free PDF template cannot replace it. The federal signed statement does not have to be annexed to the agreement.

An unadvised DIY agreement fails the ordinary requirements.

Section 90G(1A) gives the court a limited power to declare an agreement binding despite a missed advice or statement formality. That exception requires a court declaration and does not make an unadvised template a safe signing route.

A BFA has no general expiry period. It continues subject to its terms until properly terminated or set aside, with separate rules for events such as later marriage. This differs from the time limits for starting property proceedings.

The usual federal limits are 12 months after a divorce takes effect and two years after a de facto relationship ends. Section 44 also provides consent and leave pathways, and specific periods following an agreement being set aside or found invalid. Negotiating a BFA does not itself pause those deadlines.

The controlling provisions appear in the Family Law Act’s financial agreements provisions and its proceedings time limits.

Financial Disclosure Before Signing

Financial disclosure gives each party the information needed to understand what the BFA will protect, divide or exclude. Under section 90K, fraud includes non-disclosure of a material matter and can support setting a marriage agreement aside. Section 90UM contains the federal de facto counterpart.

Prepare an asset and liability schedule that identifies ownership, values and supporting records. Include bank accounts, investments, superannuation and business or trust interests. Record mortgages, personal debts and guarantees separately. Keep the exchanged schedule with the documents supplied and the correspondence explaining gaps or disputed values.

For bank records, ask for complete statements for every account across the agreed review period, including closed accounts where relevant. Check the account holders and opening and closing balances. Confirm continuity between statement periods. Missing months leave movements unaccounted for. A balance screenshot supplies less information than the statements showing how the balance arose.

Check the other party’s statements against the account schedule before advising the client to sign. Match outgoing transfers to incoming entries in the supplied accounts. Where the destination is absent, request the destination account’s records or an explanation supported by documents. The transfer creates a disclosure question. It does not by itself establish concealed property.

In a fictional example, one party discloses a savings account but supplies only four months of an agreed six-month period. The available records show a $25,000 transfer to an account outside the schedule. Obtain the missing months and establish the recipient and purpose before completing advice. Keep the response with the exchanged records so the file shows what each party knew when signing.

FinTrace saves hours of statement review by consolidating PDF statements into a searchable ledger and a clear findings report. The report identifies suspicious transfers and gaps in supplied statements, with the source PDF filename and page beside each finding. Lawyers and forensic accountants can use that evidence to focus disclosure questions without searching the original bundle again.

The wider financial disclosure duties in family law depend on the proceedings and preparation involved. If material information was hidden, the separate guide to setting aside a binding financial agreement explains the challenge pathway.

Financial Agreement or Consent Orders

A BFA is a private financial agreement supported by each party’s independent legal advice. Consent orders are orders made and sealed by the court after court approval. If you are deciding between the instruments, use the binding financial agreement vs consent orders comparison.

What to Include in the Agreement

A BFA needs terms that identify the property it covers and explain what happens when the relevant event occurs. The usual subjects include existing property, future acquisitions and liabilities. Superannuation splitting and spousal maintenance need their own legally effective treatment.

Business and trust terms need to reflect the actual interests each party holds. Owning shares, controlling a trustee and receiving trust distributions are different financial positions. The agreement must also address implementation, such as a transfer, refinance or sale, so its allocation can be carried out.

In a fictional example, a couple agrees that one partner keeps a home owned before the relationship. They propose sharing later savings equally. The drafting must define the home’s mortgage treatment and what happens if joint funds pay for renovations or repayments. It must also define which accounts contain the shared savings and how later contributions are treated.

A statement that everything stays separate leaves those questions unanswered. Use the superannuation splitting guide for the distinct fund and implementation requirements.

Cost, Timing and State Differences

The cost of a binding financial agreement depends on drafting complexity, negotiations and the separate advice each party needs. Published Australian firm fees illustrate different scopes. These are provider-listed starting prices, not a single total for every couple.

Australian provider	Published BFA service	Fee	Scope and tax basis
Stratus Legal Group	Tailored BFA drafting	From $3,150 plus GST	Disbursements additional; separate review starts at $1,650 plus GST and disbursements
Dexterity Law	Simple BFA drafting	$3,850 including GST	Simple review and independent advice certificate listed separately at $1,650 including GST
Fogarty Oliver & Rothschild	Straightforward BFA	$4,400 including GST	Disbursements excluded; complex assets or trusts listed at $6,600 to $9,900 including GST

The fee descriptions are published by Stratus Legal Group, Dexterity Law and Fogarty Oliver & Rothschild. A drafting fee for one party does not automatically pay for the other party’s lawyer. Ask the engagement quote to identify both advice arrangements and any valuation or negotiation work outside the fixed fee.

Timing follows the work still unresolved. A settled proposal with complete records is easier to progress than one involving disputed values, trusts or unexplained transfers. Allow time for disclosure, drafting and negotiation, followed by each party’s advice and execution.

Complete disclosure and advice safeguards reduce the risk of a later dispute. Compliance does not make an agreement immune from challenge.

The same federal marriage-agreement law applies in New South Wales, Victoria and Queensland, as it does elsewhere in Australia. Federal de facto agreements apply in participating jurisdictions, including South Australia and Tasmania. Their referral laws support that federal jurisdiction. Historical agreements and relationships can require transitional analysis.

Western Australian de facto agreements use Part 5A of the Family Court Act 1997 (WA). Section 205ZS requires independent advice and certificates annexed to the agreement, with the original given to one party and a copy to the other. The current WA Act therefore needs its own drafting and execution check.

WA marriages use the federal Act. WA de facto superannuation also has a distinct federal framework.

Lawyers’ fees differ between firms. State transfer duty relief also depends on the transaction.

NSW’s relationship-breakdown exemption has property and recipient conditions. Victoria’s exemption requires a qualifying transfer caused by relationship breakdown. Queensland distinguishes marriage financial agreement instruments from de facto instruments. A BFA’s title alone does not establish an exemption for every transfer.

Binding Financial Agreement Templates

A binding financial agreement template supplies drafting text, while each party’s legal advice and the statutory requirements determine whether the agreement is binding. A free template PDF, paid kit or online form cannot replace advice before signing.

A usable starting document must identify the correct Act and provision for the relationship stage. It must address property and liabilities, superannuation and maintenance where applicable. Later acquisitions need clear treatment, and the disclosure recitals must match what the parties actually exchanged.

A kit leaves the parties to organise the information and adapt the text. An online BFA service can combine document preparation with advice arrangements. For example, myBFA describes drafting from the parties’ answers and a separate Australian lawyer for each person. A fixed-fee law firm engagement defines the work its lawyer performs for its client, including the agreed drafting or review scope.

Compare the total work included, the asset complexity accepted and who advises each party. A cheap agreement that excludes separate legal advice still leaves the parties to arrange and pay for that advice. A signed template with an empty or copied advice certificate does not satisfy section 90G.

Protecting Assets in a De Facto Relationship

A de facto financial agreement can specify how a pre-owned home, family business or later acquisitions will be treated if the relationship breaks down. Section 90UB permits an agreement before the parties enter the contemplated relationship. There is no need to wait until they have lived together for two years before planning the agreement.

The legal definition of a de facto relationship depends on the couple’s circumstances. The two-year rule concerns eligibility for certain property proceedings and has statutory alternatives. The agreement needs the correct provision for the parties’ actual stage and jurisdiction.

Federal de facto agreements require the signatures and independent advice described in section 90UJ. Material non-disclosure can support a challenge under section 90UM. WA de facto agreements require compliance with the state Act’s separate formalities. An unadvised template leaves the ordinary binding requirements unmet.

If parties to a federal Part VIIIAB agreement later marry each other, section 90UJ(3) says that agreement ceases to be binding. Address an intended marriage through the appropriate marriage agreement before relying on the earlier document to protect assets. Begin with an accurate property schedule and complete supporting records, then give each lawyer time to advise on the terms the client will actually sign.