Family Law Advice Needed to Make Your BFA Legally Binding

Entering into a Binding Financial Agreement (BFA) is one of the smartest ways couples can protect their financial future, but the details matter.

Think of it as insurance for your assets-you hope you never need it, but you'll be glad it's airtight if you do.

Under Section 90G of the Family Law Act 1975 (Cth), getting proper, independent legal advice isn't just a formality-it's the foundation that makes your BFA valid and enforceable.

Skip that step, and the agreement could be tossed out by a court, opening the door to uncertainty and potential conflict.

Here at Unified Lawyers, we've guided clients across Australia through the BFA process-from busy professionals to business owners protecting complex portfolios.

We break down the legal fine print into plain English so you can make confident, informed decisions.

In this guide, we'll walk you through the essential requirements, practical steps for compliance, and how our team of experienced family lawyers can help you safeguard what matters most.

Key Points :

• A BFA only works if you follow the rules under Section 90G to the letter. That means independent legal advice for both parties, signed certificates, and no shortcuts. Courts can and do invalidate agreements where there's pressure, unfair terms, or poor disclosure.
• The earlier you speak with an Accredited Specialist, the better. Getting tailored advice before you sign helps you avoid common mistakes like using the same lawyer or overlooking assets-issues that have landed BFAs in court.
• When drafted properly, a BFA is a flexible and proactive tool. It gives couples control over their finances without needing to involve the court. But that flexibility comes with responsibility-it must be precise, fair, and futureproofed.

Why BFAs Matter

A BFA lets couples-married or de facto-decide how property, money, and assets will be divided if things don't work out, without stepping foot in court.

It's peace of mind through preparation. But for that peace to last, the agreement must meet every legal requirement under Section 90G.

Miss a step, and a court can overturn it, no matter how clear your intentions.

Steps to Ensure Validity

Here's the short version : put it in writing, get independent legal advice, sign the certificates, and exchange copies.

Simple in theory, but every detail counts.

We've included a checklist below and recommend checking the Federal Circuit and Family Court of Australia's website for the full list of formalities.

When to Seek Help

Whether you're entering a relationship, preparing for marriage, or reviewing an existing BFA, getting the right legal guidance early makes all the difference.

The family law team at Unified Lawyers offers strategic, compassionate advice that protects your interests and keeps the process straightforward.

In the complex world of family law, Binding Financial Agreements (BFAs) serve as a vital tool for couples seeking to safeguard their financial futures.

Whether you're about to marry, in a de facto relationship, or navigating a separation, understanding the intricacies of these agreements can prevent costly disputes down the track.

This comprehensive guide delves into the legal framework under the Family Law Act 1975 (Cth), with a focus on Section 90G, to help you make informed decisions.

We'll cover definitions, requirements, common errors, and practical advice, drawing on authoritative sources and real-world case law.

At Unified Lawyers, a Sydney-based specialist family law firm with over a decade of experience advising on BFAs in NSW and across Australia, we emphasise the importance of independent legal advice to ensure your agreement stands the test of time.

Our Accredited Specialists, like Maria Demetriou, have handled hundreds of cases, providing transparent and empathetic support to clients from all walks of life.

What Is a Binding Financial Agreement (BFA)?

A Binding Financial Agreement, often called a BFA or 'prenup' in popular terms, is a private contract between spouses or de facto partners outlining how property, assets, and financial resources will be divided if the relationship breaks down.

Governed by the Family Law Act 1975 (Cth), BFAs fall under Part VIIIA for married couples and Part VIIIAB for de facto relationships.

Unlike consent orders, which require court approval and are typically used to finalise existing disputes, BFAs offer flexibility without judicial oversight.

Consent orders are sealed by the court, making them enforceable like any court order, but they may be varied if circumstances change significantly.

BFAs, on the other hand, can be entered into before, during, or after a relationship and cover future scenarios, such as inheritances or business interests.

However, this flexibility comes with risks-if not properly executed, a BFA can be challenged and set aside.

For instance, BFAs are commonly used by couples with significant assets, blended families, or those wanting to avoid lengthy court proceedings.

According to the Federal Circuit and Family Court of Australia, BFAs promote autonomy but must adhere to strict validity rules to be binding.

Why Legal Advice Is Crucial for a Valid BFA

The cornerstone of a enforceable BFA is independent legal advice, as mandated by Section 90G(1)(b) of the Family Law Act.

This provision ensures each party fully understands the agreement's implications, protecting against unfairness or exploitation.

Without it, the agreement may be deemed invalid, exposing you to the default property division rules under the Act, which consider contributions, needs, and future prospects.

The purpose of this advice is twofold : to inform you of how the BFA affects your rights and to weigh its advantages and disadvantages at the time.

Courts look at whether the advice was real and meaningful. Public guidance from the Court and the Attorney-General's Department is useful for background, but the legislation and case law decide outcomes.

Understanding Section 90G of the Family Law Act

Section 90G outlines when a financial agreement becomes binding.

As per the Act :

A financial agreement is binding on the parties to the agreement if, and only if :

• (a) the agreement is signed by all parties; and

• (b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and

• (c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and

• (ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and

• (d) the agreement has not been terminated and has not been set aside by a court."

This summarises the four key elements: a written and signed agreement, independent advice, a lawyer's statement (certificate), and no termination or court intervention.

An exception exists under subsection (1A) where a court may declare the agreement binding if non-compliance (except signing) would be unjust, but this requires an application and is not guaranteed.

Legal Requirements to Make a BFA Legally Binding

To comply with Section 90G, follow this detailed checklist :

• Written Form : The agreement must be in writing, clearly detailing asset division, spousal maintenance, and other financial matters.
• Signatures : Both parties must sign voluntarily.
• Independent Legal Advice : Each party consults a separate lawyer qualified in family law.
• Lawyer's Statement : A certificate under Section 90G confirming advice was given, often annexed to the BFA.
• Copy Exchange : Statements are shared between parties or their lawyers.

Defective advice can invalidate the BFA, as seen in Dragomirov & Dragomirov [2024] FedCFamC1A 187, where the Full Court clarified the depth of advice needed for binding status.

Insights from firms like Landers & Rogers stress the need for thorough documentation.

Quick checklist in plain English

• Write it clearly : set out who owns what now and what happens if you separate
• Separate lawyers : each of you needs your own lawyer who actually advises you
• Signed certificate : your lawyer signs a short statement confirming they advised you
• Swap copies : each side gets the other lawyer's statement
• No pressure : sign willingly. If there is pressure or unfairness, a court can step in

Common Mistakes That Can Invalidate a BFA

Many BFAs fail due to avoidable errors.

Common pitfalls include :

• Missing or Inadequate Advice Certificates : Without proper certification, the agreement isn't binding.
• Using the Same Lawyer : This breaches independence requirements.
• Duress, Undue Influence, or Misrepresentation : As in Thorne v Kennedy [2017] HCA 49, where the High Court set aside agreements due to unconscionable conduct in a prenuptial scenario.
• Non-Disclosure : Failing to reveal all assets or liabilities can lead to invalidation.
• Unfair Terms : If the agreement is deemed unjust, courts may intervene.

Other issues, per sources like BCG Lawyers and Prime Lawyers, involve ambiguous drafting, not updating for life changes (e.g., children), or coercion.

Always ensure full transparency to avoid these traps.

Choosing the Right Family Lawyer for BFA Advice

Choosing the right lawyer can make or break your BFA.

Look for an Accredited Specialist in Family Law, recognised by the Law Society, who has a strong track record specifically in drafting and reviewing Binding Financial Agreements.

A seasoned specialist understands both the technicalities of Section 90G and the real-world implications of your agreement.

They'll not only ensure every requirement is met, but also explain your rights, flag risks, and tailor the BFA to fit your unique financial situation.

Don't just choose any family lawyer, choose someone who handles BFAs regularly, knows the latest case law, and can provide strategic guidance from start to finish.

What to Expect During the Legal Advice Process

The process typically involves :

• Initial Consultation : Discuss your finances and goals.
• Disclosure : Share asset details.
• Drafting/Review : Lawyer prepares or reviews the BFA.
• Advice Session : Explain rights, pros/cons.
• Certification and Signing : Sign certificate and agreement.
• Exchange : Share documents.

Costs vary but expect $2,000-$5,000 per party; timeframe is 2-4 weeks.

We prioritise empathy, ensuring you feel supported.

FAQ's About Legal Advice and Binding Financial Agreements

1. What does s90G mean?

It refers to Section 90G of the Family Law Act, which outlines the legal requirements for Binding Financial Agreements (BFAs) to be valid.

This section ensures that agreements are made with full understanding and independent advice, making them legally enforceable.

2. Why is legal advice required?

Independent legal advice is essential to confirm that each party understands their rights and the implications of the agreement.

It helps prevent coercion, ensures fairness, and provides proof that both parties entered into the BFA voluntarily.

3. How to ensure validity?

Make sure the BFA is written, signed, independently advised, and properly certified.

Both parties should retain signed statements from their lawyers confirming that advice was provided and exchange copies to meet procedural requirements.

4. When can a BFA be set aside?

Courts can set aside a BFA in cases involving duress, fraud, mistake, non-disclosure of assets, or if the agreement is deemed unjust or unconscionable (for example, Thorne v Kennedy [2017] HCA 49).

Changes in circumstances, like the birth of a child, may also trigger review.

5. Can a BFA be rectified if advice is missing?

Possibly, under Section 90G(1A), where a court may declare a non-compliant agreement binding if it would be unjust not to do so.

However, this is uncommon and risky, so full compliance from the outset is strongly recommended.

6. Does a BFA need to comply with s90G?

Absolutely. Compliance with Section 90G is non-negotiable for enforceability.

Failing to meet these requirements means the agreement may not protect your assets as intended.

7. How can Unified Lawyers help?

Our family law specialists can draft, review, or rectify BFAs to ensure full legal compliance, minimising the risk of future disputes.

We guide clients through disclosure, negotiation, and certification, offering clarity and peace of mind.

How Unified Lawyers Can Help

Binding Financial Agreements (BFAs) often involve complex rules, detailed legal requirements, and sensitive financial issues that demand expert handling.

Whether you're entering, updating, or challenging a BFA, our experienced family law specialists can provide the tailored legal advice you need to ensure your agreement is valid and secure.

At Unified Lawyers, we know that clarity, precision, and confidentiality are crucial when dealing with financial agreements.

Our team works closely with accountants, financial planners, and other professionals to make sure every aspect of your BFA complies with the Family Law Act and protects your interests.

If you want to safeguard your assets, minimise risk, and move forward with confidence, reach out to Unified Lawyers today.

We'll guide you through the process step by step and make sure your Binding Financial Agreement stands on solid legal ground.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.