Binding Financial Agreements — the full FAQ

The basics

What is a Binding Financial Agreement?

A BFA is a private contract between two people in a relationship — or two people about to enter one. It sets out, in advance, how property, financial resources and debts will be divided if the relationship ever ends. It's made under the Family Law Act 1975 (Cth) (and, for de facto couples in Western Australia, the Family Court Act 1997 (WA)).

The defining feature: a BFA replaces what a court would otherwise decide. The two of you make the rules together, on your timeline. If you ever separate, the agreement governs — not a judge years later, in a much harder moment.

Is a BFA the same as a prenup?

Yes. “Prenup” is the colloquial name for a BFA signed before a relationship. The legal product is the same. BFAs can be signed before a relationship, during one, or after separation — same framework, three different timings.

When does a BFA actually do anything?

A BFA sits dormant — like a will — until a triggering event. The trigger is separation. Once a separation declaration is signed (a short document built into the BFA), the agreement comes into full force and effect. Until then, it does nothing.

What can a BFA cover?

A BFA can cover:

• Division of property and financial resources
• Treatment of superannuation
• Pre-relationship assets and inheritances
• Business interests
• Spousal maintenance (or the exclusion of it)
• Future financial events such as an expected inheritance

A BFA cannot cover:

• Parenting arrangements for children
• Future child support obligations — those are dealt with separately under the Child Support (Assessment) Act 1989 (Cth). A separate document, a Binding Child Support Agreement (BCSA), handles binding child support arrangements.

How is a BFA different from consent orders?

Most separated couples choose consent orders. BFAs are the right answer when you want privacy, when you want a deal a court wouldn't approve, when you want to handle things before separation, or when you want to lock out future spousal maintenance claims.

When a BFA is the right answer

Three moments when a BFA fits

1. Before the relationship (a prenup). A wedding date or move-in date in the diary, and you want the rules in writing before life starts assuming them for you. The pre-cohabitation BFA is signed before you move in together; the pre-marriage BFA before the wedding.
2. During the relationship. Something has changed — an inheritance, a business sale, a property purchase, parents offering a deposit on the condition that things are formalised. A BFA captures the new picture.
3. After separation. You've agreed how to split things, but you'd prefer a private contract to a court order — for privacy, for an unusual deal, or because you don't want to involve the court. A post-separation BFA is the alternative to consent orders.

What types of BFA exist?

The same legal framework, six common configurations:

• Pre-de-facto — before living together
• During-de-facto — after the de facto threshold has been reached, while still together
• Pre-marriage (prenup) — in contemplation of marriage, before the wedding
• During-marriage — already married, want to formalise
• Post-separation — instead of consent orders
• Blended — covers both the existing de facto relationship and an upcoming marriage in one document

Is a BFA tied to one relationship only?

Yes. A BFA is specific to the two parties who sign it. If you enter a new relationship later, an entirely new BFA must be prepared and executed with the new partner.

The independent-lawyer requirement (because everyone asks)

Why does my partner need their own lawyer?

A BFA is only binding if each party has obtained independent legal advice from a separate lawyer — and each lawyer has signed a certificate confirming the advice was given. This is a legal requirement, not a Lawcaptain rule. Without those two certificates, the BFA can be set aside later. Many DIY BFAs fail for exactly this reason.

The two lawyers must be at completely different firms. The same firm cannot act for both parties.

Can my partner use Lawcaptain too?

No. Lawcaptain acts for one party only. Your partner needs to engage a different law firm for their independent legal advice.

Any qualified Australian family lawyer can give the certificate of advice. If your partner doesn't have a lawyer in mind, we can suggest other firms that work on a fixed-fee basis so the pricing is predictable on their side too. The choice belongs to them.

Can one party pay for the other's legal advice?

Yes — one party can choose to pay for their partner's independent advice. The advice itself must still be genuinely independent. The advising lawyer meets the partner separately, gives advice based on the partner's interests, and the partner is free to negotiate amendments or refuse to sign. Paying the bill doesn't buy a particular answer.

What does the advising lawyer actually do?

The advising lawyer meets with the client, takes a full background, explains the agreement clause by clause, walks through what the client is giving up and the grounds on which it could later be set aside, and provides a written letter of advice. They then sign the certificate that attaches to the BFA confirming the advice was given. Without that signed certificate, the BFA isn't binding from that side.

What if my partner refuses to see a lawyer?

Then a BFA isn't possible. Independent advice can't be waived. If a partner won't get advice, consent orders (which only require one lawyer) are usually the right alternative — assuming separation has already happened. Before separation, the only real options are to keep talking, or to accept that the BFA route is closed for now.

Process and timing

What's the process from start to signed?

1. You provide information. Assets, liabilities, the situation, what you're trying to protect.
2. Consultation. Your lawyer takes a full picture and explains the choices that will drive the document.
3. Drafting — typically a few weeks for straightforward matters; longer for more complex situations.
4. You review and confirm the draft. One round of minor amendments is included.
5. The draft and your lawyer's letter of advice go to your partner.
6. Your partner takes it to their own lawyer, who reviews, advises, and runs through amendments.
7. Both parties sign separately with their respective lawyers. Both lawyers sign their certificates. The agreement is binding from the moment the last signature is in place.

How long does it take?

For a straightforward matter, drafting is generally a few weeks. More complex matters take longer. After drafting, the other party's lawyer needs to review, advise and arrange a signing appointment, which adds further time depending on availability and complexity. We can give you a clearer indication once we've seen your situation.

Can it be done in a hurry — before a wedding next month?

No. A pre-marriage BFA generally needs at least a month of clean lead time, and a BFA signed too close to a wedding can be challenged later on duress grounds (the argument is that one party felt pressured because they didn't want to cancel the wedding). As a practical guide: start the drafting process at least 10–12 weeks before the wedding, and have the BFA fully signed at least one month before the day.

If the timeline is too tight, we'll tell you up front and decline rather than create a fragile agreement.

Can the agreement be signed if one of us is overseas?

The independent legal advice can be given by phone or video call. The physical signing is more logistical — the original document needs to make it to the signer and back. Tell us at the outset and we'll plan around it.

Do both parties sign at the same appointment?

No. Each party signs separately, with their own lawyer. You don't need to be in the same room, the same city, or even the same country.

Can a BFA be signed in counterparts?

Yes. Each party signs their own copy. There's no requirement to exchange originals — the certified copies from each lawyer are sufficient. (Note the WA-specific exception below: for WA de facto BFAs, only one original exists.)

What it costs

What does a BFA cost?

BFA pricing is built around the kind of BFA you need:

• Simple BFA — for amicable couples with straightforward finances, no trusts, no SMSFs, combined assets under a certain threshold, and good communication.
• Complex BFA — for situations involving trusts, SMSFs, business structures, larger asset pools, an existing BFA or court order, or where one party needs an interpreter.

The instant-quote tool will tell you which package fits and what the fixed price is — see the pricing page for the current numbers.

Why is a BFA more expensive than consent orders?

Because two lawyers are involved — one for each party. Consent orders only need one. That single difference is the main driver of the price gap. A BFA also has more drafting work to do, since it has to cover everything that could matter at any point in the future of the relationship; consent orders just lock in the deal you've already reached today.

Are payment plans available?

In most cases, yes — typically a deposit upfront with the balance paid before documents are released. Talk to us about specifics.

Is there a separate “review” service if my partner has already had a BFA drafted by someone else?

Yes. If your partner's lawyer has drafted a BFA and sent it to you, we can review it, advise you on the contents, negotiate amendments, and provide the certificate of independent advice. This is generally priced similarly to drafting from scratch. Heavy amendments can push the cost higher, which is why drafting from the outset is often the more predictable option.

Does the price include both parties?

No. The quoted fee covers drafting and advising one party. The other party engages their own lawyer separately, at their own cost. This is non-negotiable — it's the legal requirement for the BFA to be binding.

How a BFA divides assets

What approaches can a BFA use?

The most common approaches are:

• Quarantine — each party keeps what's in their name. Anything brought in or acquired in a sole name stays with that party.
• Direct financial contributions — each party recovers exactly what they put into a joint asset, dollar for dollar.
• Fixed percentage split — for example, 60/40 of the joint asset pool regardless of contribution.
• Sliding scale — the split shifts over time as the relationship lengthens. Short relationship: more goes back to the original owner. Longer relationship: the split tends towards 50/50.

The right approach depends on what you're trying to protect and how the relationship is structured.

Can a BFA quarantine specific assets?

Yes. You can name specific assets — a particular property, a business interest, an inheritance — that are quarantined and stay with one party. You can also write a broad quarantine that ring-fences everything in each party's sole name. The choice between targeted (“limited”) and broad (“comprehensive”) quarantine drives a meaningful difference in how the BFA reads.

Can a BFA protect money loaned or gifted by a parent?

Yes. Where a parent or family member is contributing — a deposit, a loan, equity in a business — the BFA can specify that on separation, those funds are returned to the party whose family provided them rather than being shared.

What happens to contributions made to the other party's separate property?

Under most BFAs, contributions you make to your partner's separate property (paying down their mortgage, paying for renovations to their property) are treated as gifts and are not recoverable on separation. If you want a different rule, the BFA needs to be drafted to say so.

Can a BFA cover joint property that doesn't yet exist?

Yes. The agreement can include provisions for future joint assets — a house you'll buy together, a business you'll start, a joint bank account you'll open. The BFA looks forward as well as backward.

Can a BFA include an overpayment-recoverable clause?

Yes. If you and your partner contribute unequally to a joint mortgage, the BFA can record that the overpayments by one party are recoverable on separation. This needs documentary evidence — bank statements, transfer records — to be enforceable.

Joint tenants or tenants in common?

For property purchased during a relationship where a BFA is in place, tenants in common is usually the safer structure. Joint tenancy carries a right of survivorship — if one party dies, the property passes automatically to the survivor, regardless of what the will says. Tenants in common lets each party leave their share to whomever they choose. This matters particularly in blended families. (See BFAs and estate planning for the detail.)

Disclosure

What does “full and frank disclosure” mean?

Both parties must disclose, fully and accurately, all assets, liabilities and financial resources. That includes:

• Real estate (including overseas property)
• Bank accounts
• Superannuation
• Shares, ETFs, cryptocurrency
• Businesses and trust interests
• Loans owed and credit card debts
• Anticipated inheritances
• Workers' compensation claims
• Buy-now-pay-later debts
• Any other financial interest

The duty is honest disclosure of everything. Partial disclosure or omission of a material asset is grounds to set the agreement aside.

Does disclosure include companies and trusts that have nothing in them?

Yes. Every entity in which either party has an interest must be disclosed — even an empty shelf company or a dormant family trust. If you have a role in it, it goes in the schedule.

Do we need to exchange formal bank statements?

Not always — but you have the right to. If anything about the other party's disclosure looks incomplete, requesting documents is the protective move. Exchanging formal documents (bank statements, super statements, valuations, mortgage statements) is the safer route in any case.

What if a small undisclosed asset is found later?

Case law shows that even small amounts have been enough to set BFAs aside. The risk is not proportionate to the size of the asset. Disclose everything, even the small stuff.

Should assets that may never have monetary value be disclosed?

Yes. The test is whether the asset is legally owned or held, not whether it's practically realisable. A share in a family farm held on trust gets disclosed even if it can't easily be sold.

What's the difference between a financial asset and a financial resource?

A financial asset is something currently accessible and valued — money in a bank account, a property, a balance in a super fund. A financial resource is something not yet accessible or not yet translatable into value — long service leave that hasn't vested, an expected inheritance held in someone else's estate. Both get disclosed; only financial assets are typically divided.

Separation and the trigger mechanism

What is a separation declaration?

A separation declaration is a one-page document attached to the BFA. It's signed at the time of separation to confirm the relationship has ended. Signing it brings the BFA into full force and effect. Until then, the agreement does nothing.

Do both parties have to sign the separation declaration?

No. Generally one party can sign and provide it to the other. The exact mechanics depend on how the declaration is drafted — your lawyer will walk you through this when the BFA is being prepared.

Why is the separation declaration important?

It's the switch that turns the BFA on. It also starts the clock on any time-limited rights inside the agreement. Sign it at the time of separation, not retrospectively.

Spousal maintenance

Can a BFA exclude spousal maintenance?

Yes — and this is one of the main reasons a BFA is sometimes preferred over consent orders. A BFA can include a set-off (waiver) clause stating that neither party can claim spousal maintenance from the other. Consent orders cannot do this.

Is there an exception to the spousal maintenance waiver?

Yes — one. If at the time the BFA takes effect, one party can only support themselves with a government-tested benefit (Centrelink, JobSeeker, equivalent), the waiver may not protect the other party from a maintenance claim. This is a statutory carve-out and cannot be contracted around.

The practical implication: your lawyer will discuss this with you at your consultation.

What is the $100 nominal clause?

Many BFAs include a nominal spousal maintenance clause — typically $100 — to formally address spousal maintenance, even where neither party intends to claim. The nominal amount makes it clear that the agreement disposes of any future claim, which adds to enforceability.

Setting aside — the risk, honestly

When can a court set aside a BFA?

The grounds are limited:

• Fraud or non-disclosure — one party hid assets or lied about something material.
• Duress, undue influence or unconscionable conduct — one party was pressured, rushed, or didn't have a real chance to understand what they were signing.
• Children-of-the-relationship hardship — a material change involving a child of the relationship causes hardship to the primary carer.
• Impracticability — a completely unforeseen event makes the agreement impossible to carry out (very high threshold).
• Improper execution — the formal requirements (independent advice on both sides, properly signed certificates) weren't met.

A BFA cannot be set aside just because one party later thinks the terms are unfair. Unfair is allowed. Improper isn't.

How can the risk be reduced?

By getting the procedure right: genuine independent advice on both sides, complete disclosure, no rushing the signing, certificates properly executed. Most BFAs that get set aside fail on procedure, not content. We get the procedure right.

How does having a child affect set-aside risk?

The “children” ground is the most common live risk. The court can set aside a BFA if a party would suffer hardship as a direct result of caring for a child of the relationship. Examples: a party who can't work because they're the primary caregiver of a young child; a child with significant health needs forcing one parent to reduce work; a major shift in caregiving where one parent goes from no responsibility to full-time care.

The risk is higher when:

• The asset disparity in the BFA is large
• The children are young or have ongoing needs
• The hardship is genuinely caused by the children, not by the separation itself

The hardship ground applies until the youngest child of the relationship turns 18.

Can a BFA be set aside because the terms turn out to be unfair?

No — not for that reason alone. A BFA can be lopsided. That's the whole point. The court won't second-guess the substance unless one of the limited grounds above applies.

Changing or ending a BFA

Can a BFA be changed after it's signed?

Yes. An existing BFA can be varied or replaced by a new BFA. The same requirements apply — both parties must obtain independent legal advice and sign the new agreement with their lawyers. A simple letter or email agreement is not enough.

How can a BFA be terminated?

Two ways:

1. A new BFA that explicitly replaces it.
2. A formal termination agreement.

Both require independent legal advice on both sides. A text message agreement does not terminate a BFA.

Should a BFA be reviewed periodically?

Yes — a review every few years, or after a major life event (a child, a serious illness, a significant change in income or assets, marriage where a de facto BFA is in place, the relationship ending), keeps the agreement aligned with reality. A review clause can be built into the BFA, but it's only useful if you'll actually do the review.

Tax, stamp duty and property

Does stamp duty apply when transferring property under a BFA?

Generally no. In most Australian states, property transfers between separating parties under a properly executed BFA qualify for a stamp duty exemption — or attract only a nominal fee. The exact rule depends on the state. Confirm with your conveyancer or settlement agent when the transfer is happening. (See Property transfer after settlement.)

Does a property transfer under a BFA trigger CGT?

Transfers of property between spouses or former de facto partners under a BFA qualify for CGT rollover relief under the Income Tax Assessment Act 1997 (Cth). The transfer itself doesn't trigger CGT. The receiving party inherits the original cost base, and CGT is triggered only when they later sell the asset to a third party.

Important exception: the rollover does not apply to transfers into or out of trusts. Trust-related transfers need separate tax advice.

Can a BFA include a super split?

Yes. A super split can be included in a BFA as a section 90MJ superannuation agreement (the formal mechanism under the Family Law Act for splitting super outside a court order). The super fund must be notified and given the prescribed forms. (Full detail in Super splits explained.)

Should super in a BFA be expressed as a percentage or a dollar amount?

For a pre-separation BFA, percentage is usually preferable because super balances change. For a post-separation BFA where the balance is known, either can work. Talk to your lawyer about which suits your circumstances.

BFAs involving businesses, trusts and complex assets

Does a business or trust change the cost of a BFA?

Yes. Where the agreement needs to cover a business, a trust, or another complex structure, additional drafting is required and the price moves up. The instant-quote tool routes you to the right package and shows the price before you commit.

Can a BFA protect assets held in a trust?

Yes. A BFA can specify that a trust — including a family discretionary trust — is solely the financial interest of one party and that the other waives any claim. The drafting needs care, particularly if the other party is a named beneficiary or has received benefits from the trust.

Can a BFA cover overseas assets?

Generally, assets located in Australia can be covered by an Australian BFA. Overseas real property may not be effectively dealt with by an Australian BFA — separate legal steps in the relevant country may be required. Tell us at intake about any overseas assets and we'll plan around them.

Can the parties continue running a business together after separation?

Yes, but the BFA needs to be carefully drafted to allow it. Jointly-owned business interests can continue operating post-separation with a clean-break mechanism — a first right of refusal, a buyout option, or a sealed-bid process — to provide an eventual exit.

BFAs, wills and death

Does a BFA replace the need for a will?

No. A BFA deals with separation. A will deals with death. If a party dies without separation having occurred, the BFA never activates and the will governs. Both documents are needed and they should be reviewed together so they don't contradict each other.

What happens to a BFA if one party dies?

Two scenarios:

1. No separation before death — the BFA does not apply. The will governs.
2. Separation has occurred before death — the BFA remains binding on the deceased party's estate. The executors carry out its terms.

Does marriage revoke a will?

Yes. Under Australian succession law, marriage automatically revokes a prior will unless the will was made expressly in contemplation of that specific marriage. If you're getting married, update your will.

Can a BFA prevent a family provision claim on the other party's estate?

No. Family provision legislation cannot be contracted out of. A BFA can be evidence the court considers in assessing a claim — but it doesn't bar the claim.

Translation, language and capacity

What if one party doesn't speak English fluently?

Either the consultation is conducted with an accredited interpreter, or — preferably — the party sees a lawyer who speaks their language. If a party doesn't genuinely understand the agreement, the BFA is at risk of being set aside on undue-influence or lack-of-understanding grounds. Translated documents should be annexed to the original.

What if a party has mental capacity concerns?

A BFA requires both parties to enter freely and with a real understanding of what they're signing. If capacity is in doubt, the lawyer must raise it before signing proceeds. This is a complex-BFA situation — talk to us at intake.

WA-specific carve-outs

These don't apply to clients outside Western Australia.

The WA “blended BFA” risk

In WA, the Family Court Act 1997 (WA) does not contain a clause expressly stating that a de facto BFA terminates when the parties marry. In every other state and territory, the legislation does. Because WA is missing the clause, there is an open argument that a blended (de facto + pre-marriage) BFA in WA may not survive cleanly into marriage — possibly leaving both agreements in play, and so neither effective. This has never been tested in court.

The options for a WA de facto couple who may later marry:

1. Do only a de facto BFA now and a new BFA when and if they marry — two separate documents, safest approach.
2. Do only a pre-marriage BFA — but this gives no de facto protection before the wedding.
3. Do a blended BFA and accept the risk.

We'll walk you through which option fits.

WA de facto BFAs — only one original

For a de facto BFA in WA, only one original of the agreement exists. Married couples (and de facto couples in other states) can have multiple originals — one held by each party's lawyer. WA de facto BFAs work differently: one original is typically held by one lawyer, and the other party receives a certified copy.

Eastern States vs WA — what's the practical difference?

For most BFAs, the framework is the same nationally. The two practical differences are:

• WA de facto matters sit under the Family Court Act 1997 (WA), not the federal Act. This affects which sections of legislation the BFA cites — not the substance.
• The blended-BFA risk above applies in WA only.

For married couples and for de facto couples outside WA, the Family Law Act 1975 (Cth) governs the BFA.

Why use Lawcaptain for your BFA?

Two reasons that matter.

• Fixed price, written down. You'll see the price before you commit. No hourly billing, no surprise invoices.
• Help finding a lawyer for your partner. Independent legal advice is mandatory. We only act for one party, but if your partner doesn't have a lawyer in mind, we can suggest other firms that work on a fixed-fee basis so the cost is predictable on their side too.

Everything still goes through a real Australian family lawyer. The AI helps us go faster; it doesn't sign the certificate.