Binding Financial Agreement

A Binding Financial Agreement (“BFA”) is an agreement dealing with how a couple’s property, liabilities or financial resources are to be distributed in the event of a breakdown of their de facto relationship or marriage. Such agreements may also deal with the maintenance of either of the spouse parties.

Parties can enter into a BFA before marriage (commonly referred to as a ‘Pre-Nup’), during a marriage or de facto relationship or after a marriage or de facto relationship has broken down.

A BFA is binding on you and your ex-spouse when:

  1. It is signed by both of you;
  2. There is a statement of legal advice for each of you from a qualified legal practitioner setting out the matters referred to in the Family Law Act and their advice was given to you before each of you signed the Agreement; and
  3. The statements of independent legal advice are exchanged.

The main difference between Consent Orders (link) and a BFA is that a BFA is not approved or considered by a Court. If either of you breach a term of the BFA the other party can apply to the Family Court to have it enforced. If the BFA is held to be valid and enforceable, the Court can enforce its terms as though those they were orders of the Court.