Binding Financial Agreements (BFA): Cost, Rules & Validity

A binding financial agreement (BFA) is a written contract made under Part VIIIA (married couples) or Part VIIIAB (de facto couples) of the Family Law Act 1975 (Cth) that decides how property, superannuation and maintenance are dealt with if the relationship ends, and it binds the parties only if each of them receives independent legal advice before signing. People often call a BFA made before marriage a "prenup", but the same agreement can also be made during a relationship, after separation or after divorce.

To make a BFA, each party first gives the other full financial disclosure, then each party instructs a separate lawyer. The agreement is drafted and signed, each lawyer signs a statement confirming the advice was given, and each party receives a copy of the other party's statement. Because two lawyers are always involved, it pays to compare family lawyers in Australia who offer fixed-fee BFA work.

A BFA is not filed with a court. It sits outside the court system until someone tries to enforce it or set it aside, which is why the formal requirements matter so much.

What is a binding financial agreement?

A binding financial agreement is a financial agreement under the Family Law Act that meets the "binding" requirements in section 90G (married) or section 90UJ (de facto). It can deal with the property and financial resources of either party, spousal or de facto partner maintenance, and matters incidental to those.

The Act sets out a separate section for each stage of a relationship.

The agreement must state the section it is made under. An agreement made before or during a marriage that deals with property on breakdown has no force for those property provisions until a separation declaration is signed, under section 90DA. The declaration states the parties have separated and there is no reasonable likelihood of cohabitation resuming. It is not needed once the parties divorce or either party dies.

What makes a binding financial agreement valid?

A binding financial agreement is valid and binding only if all of the conditions in section 90G(1) (married) or section 90UJ(1) (de facto) are met:

1. The agreement is in writing and states the section of the Family Law Act it is made under.
2. The agreement is signed by all parties.
3. Before signing, each party received independent legal advice from a legal practitioner about the effect of the agreement on their rights and the advantages and disadvantages of making it.
4. Each party received a signed statement from their lawyer confirming that advice was given. This is the "certificate of independent legal advice".
5. A copy of each party's statement is given to the other party or their lawyer.
6. The agreement has not been terminated or set aside by a court.

If a party can't prove one of the advice requirements, the agreement is not automatically lost. Under section 90G(1A) and (1B), a court can declare the agreement binding if it is satisfied it would be unjust and inequitable for it not to be. The party seeking to enforce the agreement must apply for that declaration.

Is a DIY or template BFA binding?

A template agreement alone is not binding. Without independent legal advice to each party and a signed lawyer's statement for each, the section 90G or 90UJ requirements are not met. A template is at most a starting point for the lawyers.

How much does a binding financial agreement cost?

A binding financial agreement costs each party their own legal fees, and there is no court filing fee because the agreement is not filed. Legal fees vary widely between firms and cities, and with the complexity of the assets. The figures below are indicative ranges, as at September 2026.

Fees rise when the agreement is negotiated back and forth, when there are many assets to disclose, or when superannuation is split.

What can a BFA cover, and what can't it?

A BFA covers property, financial resources and maintenance. It cannot decide parenting arrangements.

• Property and debts. Any property or financial resources of either party, whether held now or acquired later.
• Superannuation. Under section 90XH (married) and section 90XHA (de facto), a financial agreement can include a superannuation agreement that splits super as if it were property.
• Spousal or de facto maintenance. A maintenance provision is void unless it names the person being maintained and the amount, under section 90E (married) or section 90UH (de facto).
• Children's living arrangements. A BFA cannot make parenting orders. Those are made by consent or by the court, as explained in our guide to parenting orders in Australia.
• Child support. Child support is dealt with under the Child Support (Assessment) Act 1989 (Cth), through a Services Australia assessment or a separate child support agreement.

Even a valid BFA does not fully exclude maintenance. Under section 90F, a court can still order maintenance if, when the agreement took effect, a party could not support themselves without an income-tested pension, allowance or benefit.

Can a binding financial agreement be set aside?

A binding financial agreement can be set aside only on the grounds listed in section 90K (married) or section 90UM (de facto). The court must be satisfied that:

1. The agreement was obtained by fraud, including non-disclosure of a material matter.
2. A party entered into it to defraud or defeat creditors, or with reckless disregard of creditors' interests.
3. A party entered into it to defraud or defeat the interests of a de facto partner of a spouse party.
4. The agreement is void, voidable or unenforceable, for example because of duress, undue influence or unconscionable conduct under general contract law (section 90KA).
5. Circumstances have changed so that it is impracticable to carry out the agreement or part of it.
6. There has been a material change in circumstances relating to the care, welfare and development of a child, and the child or the carer would suffer hardship if the agreement stood.
7. A party engaged in unconscionable conduct in making the agreement.
8. A superannuation payment flag or an unsplittable superannuation interest prevents the agreement operating as intended.

The leading High Court case is Thorne v Kennedy [2017] HCA 49. The court set aside a pre-nuptial agreement signed days before the wedding, and the post-nuptial agreement that replaced it, for undue influence and unconscionable conduct.

If you want to enforce the agreement

A party relying on the agreement asks the court to enforce it under section 90G(2) or section 90KA. The court applies contract-law principles and can order that the agreement be enforced as if it were a court order.

If you want to challenge the agreement

A party challenging the agreement applies to the Federal Circuit and Family Court of Australia (or the Family Court of Western Australia) to set it aside under section 90K or 90UM. The court can then make property orders in its place. For married couples, section 44(3B) gives 12 months after the agreement is set aside to start property proceedings, if the divorce time limit has already passed.

How do you end or replace a BFA?

A BFA ends only by a new financial agreement that terminates it, or by a written termination agreement, under section 90J (married) and section 90UL (de facto). A termination agreement has the same requirements as the original: signatures, independent legal advice for each party and a signed lawyer's statement for each.

A BFA does not end on death. Under section 90H, it continues to bind the estate of a party who dies.

Does a BFA work in Western Australia?

For married couples in Western Australia, a BFA is made under Part VIIIA of the Family Law Act, as in other states. De facto couples in WA are different. Western Australia has not referred de facto financial matters to the Commonwealth (the note to section 90RA says so), so WA de facto financial agreements are made under the Family Court Act 1997 (WA) and disputes go to the Family Court of Western Australia.

Binding financial agreement or consent orders?

Both formalise a property settlement. A BFA is private, needs two lawyers and is not checked by a court. Consent orders are filed with the court, which checks the terms are just and equitable. Our guide to binding financial agreement vs consent orders compares the two side by side, and our guide to property settlement after separation explains how the court divides property when there is no agreement.

Editor's picks

Chosen by our editors from verified facts and always labelled. Shown separately from the data-ranked list. How we rank law firms

Editor's pick #1Family law practice

Family Lawyer Associates

Melbourne VIC

Dedicated family law practice covering separation, property, parenting and international matters nationally.

Melbourne VIC

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Editor's pick #2Law firm

Pearce Webster Dugdales

★★★★★ 4.6 (54 Google reviews, Southbank (99 Queens Bridge St))

Established Melbourne firm with Law Institute of Victoria accredited specialists across family, property and commercial law.

Southbank VICGeelong VIC

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Editor's pick #3Family law firm

Doyle's Family Law & Mediation

★★★★★ 4.0 (4 Google reviews, Hawthorn (Glenferrie Rd))

Family law firm offering both mediation and litigation for property, parenting and divorce matters.

Hawthorn VICLorne VIC (by appointment)

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Editor's pick #4Law firm and notary public

AM Legal

★★★★★ 5.0 (5 Google reviews, Aldinga (Old Coach Rd))

Long-established South Australian practice combining family, estate and commercial law with notary services.

Aldinga SA

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Finding a family lawyer for a binding financial agreement

Each party needs a separate lawyer, so compare fee models (fixed fee or hourly), accredited family law specialists and public review records before you ask for a quote. Start with the ranked list of family lawyers in Australia, or go straight to family lawyers in Sydney, family lawyers in Melbourne, family lawyers in Brisbane or family lawyers in Perth. In Perth, check that the lawyer handles WA de facto agreements under the Family Court Act 1997 (WA) if you are not married.