What is a Binding Financial Agreement (BFA)?
A Binding Financial Agreement is a private legal agreement that does not require Court approval and is often used to record how assets, liabilities, superannuation and maintenance will be divided. A BFA complies with various sections of the Family Law Act for both married couples and de facto couples and can be made before, during, or after a marriage or de facto relationship.
Our financial agreement lawyers help married and de facto couples formalise property settlements, division of assets and financial agreements through Binding Financial Agreements or Consent Orders.
What is a Consent Order?
A Consent Order is a legally binding Court Order that records an agreed property settlement and sets out the steps required to implement it. This may include transferring the family home, refinancing a mortgage, making a payment by a specified date or dividing superannuation.
Court approval can provide added certainty where the settlement depends on both parties completing particular obligations and may be required if a partner is unwilling to comply with an earlier financial agreement.
Our Family Lawyers in Melbourne offer a wide range of services and advice, including:
What is a Property Settlement?
A property settlement is the process of dividing assets, liabilities, superannuation and financial resources following the breakdown of a marriage or de facto relationship. A settlement can be reached by agreement between the parties or determined by the Court where an agreement cannot be reached.
Our family lawyers assist married and de facto couples to negotiate and formalise property settlements involving a wide range of assets, from straightforward arrangements to complex financial structures. This may include family trusts, companies, business interests, self-managed superannuation funds, property transfers, refinancing requirements and other settlement obligations.
How We Work With You
Initial Consultation
We begin with a confidential discussion to understand your relationship, separation, financial circumstances and the agreement reached or being negotiated. We explain the differences between the agreement types and your options, including the legal requirements, risks and practical implications of each option.
Strategic Planning
A tailored approach is developed based on your objectives, asset pool and financial structures. We identify the property, liabilities, superannuation and maintenance issues that need to be addressed and provide practical advice about disclosure, implementation and the terms required to formalise the settlement.
Resolution and Outcome
We prepare the appropriate Binding Financial Agreement and/or Consent Orders and guide you through the signing, advice or court application process. You are kept informed at every stage, with a focus on creating an enforceable arrangement that provides certainty and allows both parties to move forward with certainty.
Choosing the Right Settlement Option
Binding Financial Agreements and Consent Orders can both formalise a property settlement following separation, but they involve different processes and legal requirements.
We help you compare the available options and select an approach that reflects your circumstances, financial arrangements and long-term objectives.
Our experienced Family Law team provides practical advice on structuring agreements that reflect each client’s circumstances and long-term financial objectives.
Independent Legal Advice
Each party must obtain independent legal advice before signing a Binding Financial Agreement. This means each person must engage their own lawyer rather than using the same lawyer for convenience or to reduce costs.
Because a Binding Financial Agreement can have significant long-term consequences, independent advice helps ensure each party understands how the agreement affects their rights, responsibilities and financial position before signing.
When Can You Make a Financial Agreement?
Before marriage (a “pre-nup agreement”)
During marriage or de facto relationship (a “post-nup”)
After separation or divorce
Our financial agreement lawyers provide practical advice that protects property, assets, and inheritances, to help manage financial risk and create greater certainty for your future.
Frequently Asked Questions
A Binding Financial Agreement is a private agreement between the parties and does not require Court approval. Each party must obtain independent legal advice before signing. Consent Orders are submitted to the Court for review and, if approved, become legally binding Court Orders. They can also set out the practical steps required to implement a settlement, such as property transfers, refinancing, payments and superannuation splitting.
Yes. A Binding Financial Agreement can be entered into before, during or after a marriage or de facto relationship. After separation or divorce, it can be used to formalise an agreed division of property, liabilities, superannuation and maintenance without requiring Court approval.
Yes. Each party must receive independent legal advice from their own lawyer before signing the agreement. The lawyer must explain how the agreement affects that person’s rights, as well as its advantages and disadvantages, and provide a signed statement confirming that the required advice was given.
Yes. A Binding Financial Agreement can address the division of property and other assets, responsibility for liabilities, superannuation interests and spousal or de facto maintenance. It may also deal with trusts, companies, self-managed superannuation funds, refinancing obligations and other financial matters relevant to the settlement.
For more complicated situations where there is a complex mixture of assets, finances, investments and even jointly owned business we provide support for Complex Property and Financial Settlements, which can involve advice from our Commercial and Business Law team along with our Tax Law team, and SMSF experts.
Yes. A Court may set aside a Binding Financial Agreement in certain circumstances, including where:
- The agreement was obtained through fraud, including the non-disclosure of material information.
- A party entered into the agreement to defraud or defeat creditors.
- A change in circumstances has made the agreement impracticable to carry out.
- There has been a material change in circumstances relating to the care, welfare or development of a child of the relationship.
It is therefore important that the agreement is carefully drafted, based on full financial disclosure and supported by independent legal advice.
No. A Binding Financial Agreement primarily deals with financial matters and asset division between the parties and does not determine parenting arrangements, sometimes referred to as child custody.
Parenting arrangements and child support are addressed separately through parenting plans, parenting orders, child support agreements.
Click to learn more about our: Parenting Arrangements & Child Support services.
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Please note: The information on this page is provided for general information purposes only and does not constitute legal advice. It is not intended to be comprehensive or to apply to any specific circumstances. You should seek independent legal advice before acting on any information contained on this page.