Family law
What Is a Binding Financial Agreement and When Is Independent Advice Required?
A financial agreement can regulate property, financial resources, superannuation-related arrangements and maintenance before, during or after a marriage or qualifying de facto relationship. For it to be binding, technical statutory requirements apply, including independent legal advice for each party before signing about prescribed matters.
Key points
- Married and de facto couples use different statutory sections.
- Agreements may be made before, during or after the relationship.
- One lawyer cannot provide the required independent advice to both parties.
- Full and accurate financial information supports informed decisions.
- Signing certificates does not guarantee an agreement can never be challenged.
- Start early so advice and negotiation are genuine, not rushed.
What can an agreement address?
It may address how identified property and liabilities will be dealt with after breakdown, maintenance and related issues. The document must fit the relationship stage and statutory framework.
Why is independent legal advice mandatory?
The Court’s guidance states that each party must receive independent advice from an Australian legal practitioner about prescribed matters before entering the agreement. Advice requires sufficient time, disclosure and understanding; it is not merely witnessing a signature.
Can a court set it aside?
The Family Law Act 1975 (Cth) identifies circumstances in which financial agreements may be set aside. Fraud, non-disclosure, unconscionable conduct and certain material changes are among issues requiring individual analysis. No responsible adviser should promise that an agreement is unchallengeable.
Hypothetical example
A wedding is two days away when one party receives a lengthy agreement and is told the wedding will be cancelled unless it is signed. Timing and pressure create risks that should have been avoided by starting months earlier.
What to prepare
Relationship chronology, asset and liability schedule, income, superannuation, trusts and companies, prior agreements, objectives and enough time for separate advice.
Arrange advice early
Book a confidential BFA consultation.
Sources checked
First drafted: 21 July 2026. General information only.