Binding Financial Agreements in Sydney

Updated October 2026

A Binding Financial Agreement (BFA) records how specified property and financial matters will be dealt with if the relationship ends. It can provide greater certainty, but its protection depends on meeting legal requirements and how the agreement is negotiated. ^[1]

What Is a Binding Financial Agreement?

A BFA is a private agreement made under the Family Law Act 1975 (Cth). It can address property division, debts and spousal maintenance without requiring advance court approval. An agreement can cover the whole financial relationship or particular assets.

Unlike an informal understanding between partners, a binding agreement can exclude the Court’s power to divide the property it covers. However, calling a document a “BFA” does not make it enforceable. ^[1]

Prenups, Postnups and De Facto Agreements

The appropriate agreement depends on your relationship status. For marriages, section 90B covers agreements before marriage, section 90C applies during marriage, including separation before divorce, and section 90D applies after divorce. ^[2]

A prenuptial agreement, often called a prenup, is one type of BFA recognised in Australia. Our guides to agreements before marriage, during marriage and after divorce explain those situations.

For de facto couples, including same-sex couples, sections 90UB–90UD cover agreements before, during and after the relationship. Our de facto services page explains the broader relationship requirements. ^[1]

How Much Does a Binding Financial Agreement Cost?

The cost depends on the work required. Reviewing an agreement prepared by another solicitor differs from drafting an agreement, negotiating amendments and advising on complex assets.

When comparing quotes, check whether they include GST, financial disclosure, revisions and correspondence with the other party’s lawyer. Clarify whether valuations, accounting advice or implementing property transfers involve additional charges. Each party’s independent legal advice must also be budgeted for.

A low advertised price is not useful unless you know what it covers. Ask what happens if negotiations continue or the proposed terms change.

Ask CM Lawyers for a written quote identifying the scope of work. Provide any existing draft and explain your circumstances so the estimate reflects what you actually need.

Do Both Parties Need Independent Legal Advice?

Yes. Each partner needs independent legal advice before signing. Sections 90G and 90UJ contain the binding requirements for marriage and de facto agreements respectively.

The advice must explain how the agreement affects that person’s rights and the advantages and disadvantages of entering it. The statutory process also requires signed statements confirming the advice, with copies exchanged. ^[2]

This is not simply witnessing a signature. Your solicitor should explain the rights you may surrender, identify problematic clauses and consider the agreement against your financial circumstances. Both partners need their own independent representation.

Can a Binding Financial Agreement Be Overturned?

Yes. Sections 90K and 90UM allow courts to set aside agreements on specified grounds. These include fraud involving material non-disclosure, unconscionable conduct, impracticability and certain changes concerning children that would cause hardship.

A BFA should never be presented as guaranteed asset protection. ^[2]

Thorne v Kennedy: Why Legal Advice Alone Is Not Enough

In Thorne v Kennedy [2017] HCA 49, the High Court set aside prenuptial and postnuptial agreements for unconscionable conduct. The majority also found undue influence. The financially weaker party had received independent advice but faced pressure to sign shortly before the wedding.

The practical lesson is to allow genuine time for consideration and negotiation, without ultimatums. Independent advice does not prevent challenges based on undue influence or unconscionable conduct. ^[3]

What Assets Can a BFA Cover?

An agreement can address the family home, investments, business interests, inheritances and debts. Superannuation arrangements require additional statutory compliance. Spousal maintenance can also be addressed, although statutory limits may prevent a complete exclusion. ^[2]

For example, a couple buying a Sydney home with unequal deposits may want to record how those contributions are treated following separation. The drafting should also consider mortgage repayments, improvements and future changes, rather than relying on a single ownership percentage.

Disclose assets and liabilities accurately. An agreement built on incomplete information may create a dispute rather than prevent one.

BFA or Consent Orders After Separation?

A BFA is privately negotiated and does not require initial court approval. Consent orders are approved by the Court, which must be satisfied that proposed property orders are just and equitable. ^[4]

Neither option is automatically best. The appropriate approach depends on the agreement reached and the circumstances. Our property settlement services explain the wider options available after separation.

How Long Does the Process Take?

Timing depends on disclosure, negotiations and the availability of both solicitors. Start well before a wedding or planned transaction.

We begin by discussing your objectives and reviewing relevant financial information. We then prepare or review the agreement, address proposed amendments and explain its consequences before signing. Tell us about any deadline at the outset rather than leaving advice until the final days.

Keep the signed agreement and advice statements securely. Consider a review after major changes, such as having children.

Speak With CM Lawyers

Our Marrickville team assists clients across Sydney with BFA drafting, negotiation and independent advice on agreements prepared elsewhere.

Call (02) 9557 9000 to discuss your circumstances and request a quote. Bring any draft agreement, a summary of your assets and debts, and details of any approaching deadline.

This information is general only and is not a substitute for specific legal advice about your circumstances.