Binding financial agreements under Part VIIIA.

In everyday conversation the terms are used interchangeably. The legal distinction matters. In Australia, a financial agreement before marriage draws its force from statute, not general contract law alone. To be intended as binding, and to remove the court’s jurisdiction over property settlement, an agreement before marriage must comply with the formal requirements of s 90B of the Family Law Act 1975 (Cth): in writing, signed by both parties, accompanied by independent legal advice from two separately retained solicitors, with a signed s 90G certificate attached. An agreement that calls itself a prenup but does not meet those requirements does not prevent either party applying to the court for a property order. A BFA that satisfies those requirements is a statutory instrument, and its binding force is a function of compliance with the Act.

Yes. This is one of the requirements under s 90G of the Family Law Act 1975 (Cth). Before signing, each party must receive independent legal advice from a separate legal practitioner engaged solely for that party. A solicitor cannot act for both parties on a BFA. The advice must cover the effect of the agreement on that party’s rights and the advantages and disadvantages of making it. After giving the advice, each solicitor must sign a written certificate confirming it was given, and that certificate must be attached to the agreement. An agreement where one solicitor advised both parties, or where no certificate was provided, does not satisfy s 90G(1). This is not a procedural formality: it is the mechanism intended to ensure each party genuinely understood what they were agreeing to.

Yes. A BFA can be set aside by the Federal Circuit and Family Court of Australia on the grounds listed in s 90K of the Family Law Act 1975 (Cth). The main grounds are fraud (including material non-disclosure), unconscionable conduct, duress, undue influence, mistake of fact, and changed circumstances relating to the care of children. In Thorne v Kennedy (2017) 263 CLR 85, the High Court set aside two formally executed BFAs on grounds of unconscionable conduct and undue influence, finding that the circumstances of execution removed the party’s genuine freedom to refuse. Formal compliance with s 90G goes a long way toward establishing binding force, but it does not immunise the agreement against challenge. A BFA is more likely to withstand scrutiny where both parties were independently and genuinely advised, disclosure was complete, there was no pressure at signing, and the terms are not grossly one-sided.

Independent legal advice is not a formality, and a certificate signed after a brief meeting in which the financial schedules were not reviewed does not provide meaningful protection. For the advice to satisfy s 90G, the solicitor must advise on the effect of the specific agreement on that party’s rights, identify the advantages and disadvantages of making it, and explain what the party would likely receive in property proceedings under s 79 if no agreement were made. The quality of the ILA is not tested at execution: it is tested when one party applies to have the agreement set aside. When Blake Fraser acts as advising solicitor, the advice covers the effect of the agreement on that client’s rights, a comparison with what they would likely receive in property proceedings, the specific advantages and disadvantages of the proposed terms, and any concerns arising from the financial disclosure or the circumstances of execution.

The cost depends on the complexity of the matter: the nature and number of assets, whether business, trust, or company structures are involved, whether superannuation splitting is required, and how many rounds of negotiation are needed before terms are agreed. Because both parties must retain their own solicitor, the total cost across the transaction includes both sets of fees. Fraser Lawyers provides a written costs estimate after an initial discussion, once the nature of the proposed agreement is understood. An agreement between parties with a straightforward asset pool costs less than one covering a business, a trust, or overseas property. Fraser Lawyers does not offer fixed-fee BFA services because no two matters are the same.

A BFA does not automatically become unenforceable when children are born. However, the birth of children is one of the circumstances that may support a set-aside application under s 90K(1)(d) of the Family Law Act 1975 (Cth), where a material change in circumstances relating to the care, welfare, or development of a child has occurred and, as a result, a child or the carer would suffer hardship if the agreement were not set aside. Whether that ground is made out depends on the specific terms of the agreement and the financial position of the parties and children at the time the issue arises. Couples who sign a BFA before having children should consider reviewing the agreement, and if appropriate replacing it under the same s 90G requirements, when their circumstances change materially.

No. A BFA and a property consent order are different instruments governed by different parts of the Family Law Act 1975 (Cth). A BFA is a contract made outside the court, without any judicial scrutiny of its terms at execution. A consent order is filed with the FCFCOA, and a registrar must be satisfied that the proposed orders are just and equitable before making them. Consent orders are directly enforceable as court orders. A BFA is enforceable by specific performance proceedings. Both can achieve a similar practical outcome, but they have different processes, different formal requirements, different costs, and different long-term risk profiles. For post-separation settlements, consent orders are generally the lower-risk instrument. BFAs are often more appropriate for pre-relationship or mid-relationship financial planning.

Yes. Part VIIIAB of the Family Law Act 1975 (Cth) provides equivalent BFA provisions for de facto couples. Section 90UB covers agreements before a de facto relationship commences, s 90UC covers agreements made during the relationship, and s 90UD covers agreements made after the relationship ends. The formal requirements under s 90UJ, independent legal advice, signed certificates, written agreement, are identical in substance to those for married couples under s 90G. The grounds for setting aside under s 90UM mirror s 90K. Queensland opted into the Commonwealth de facto property regime in 2010, so these provisions apply to de facto couples in Queensland provided the relationship meets the qualifying thresholds. If you are in a de facto relationship and considering a financial agreement, the governing law is the Family Law Act 1975 (Cth), not Queensland property law.