Key points
- A binding financial agreement can be made before, during or after a marriage or de facto relationship.
- Each person must get independent legal advice before signing, and the lawyer must sign a statement confirming it.
- If the strict requirements aren’t met, the agreement may not be binding.
- A court can set an agreement aside in limited circumstances, such as fraud or unconscionable conduct.
What is a binding financial agreement?
A binding financial agreement (BFA) is a written agreement under the Family Law Act 1975 (Cth) about how property, finances and superannuation will be dealt with if a relationship ends. It can also cover spousal maintenance. If valid, it can prevent the court from making property orders that are different to what you’ve agreed.
When can you make one?
- Before marriage or a de facto relationship (often called a prenup).
- During the relationship, for example when buying property or receiving an inheritance.
- After separation, as an alternative to consent orders.
The legal requirements
To be binding, the agreement must generally:
- be in writing and signed by both parties;
- be signed after each party has received independent legal advice about how the agreement affects their rights, and its advantages and disadvantages; and
- include a signed statement from each party’s lawyer confirming that advice was given.
Both parties should also give full disclosure of their financial circumstances. These requirements are applied strictly, so it’s important to get the drafting and process right.
When can a BFA be set aside?
A court can set aside an agreement in limited circumstances, including:
- fraud, such as failing to disclose significant assets;
- unconscionable conduct, such as undue pressure or taking advantage of someone’s vulnerability;
- a material change in circumstances relating to the care of a child, causing hardship; or
- the agreement being impracticable to carry out.
Signing a prenup in a rush just before the wedding increases the risk of a challenge. Give yourselves plenty of time.
BFA or consent orders?
After separation, many couples formalise their agreement through consent orders, which the court reviews to make sure the outcome is just and equitable. A BFA doesn’t need court approval but has stricter requirements. Your lawyer can explain which option suits you. See our guide to property settlement after separation.
How we can help
Asher Freeman Lawyers prepares and reviews binding financial agreements for couples across Victoria, and provides the independent legal advice each party needs. Each person must have their own lawyer, so we act for one party only.
Frequently asked questions
Are prenups legally binding in Australia?
Yes, if they meet the strict requirements of the Family Law Act, including independent legal advice for each party.
Can we use the same lawyer?
No. Each party must receive independent legal advice from their own lawyer.
Can a binding financial agreement be challenged?
Yes, in limited circumstances, such as fraud, non-disclosure, unconscionable conduct or a material change relating to a child.
Can a BFA deal with superannuation?
Yes. A BFA can include superannuation splitting, provided the requirements are met.
This article is general information about Victorian and Australian law as at 10 October 2026. It is not legal advice. Contact us for advice about your situation.
