Under Australian law, specifically sections Part VIIIA and Part VIIIAB of the Family Law Act 1975, couples can enter into binding contracts known as Financial Agreements or BFAs (Binding Financial Agreements). These apply to both married couples and those in de facto relationships.

When can these agreements be made?

Under Australian Family Law, Binding Financial Agreements can be established at three distinct stages:

Before a Relationship: Often called prenuptial arrangements, these agreements set out asset protection strategies and establish how property would be distributed if the relationship ends.

During a Relationship: Couples can create these agreements while together, whether married or in a de facto partnership, to clarify financial arrangements and protect certain assets acquired before or during the relationship.

After Separation: These agreements serve as formal separation documents, determining how accumulated assets and superannuation will be divided between the parties following relationship breakdown.

Legal Requirements:

Before any Financial Agreement becomes valid, Australian law mandates specific procedural steps:

• Each party must obtain independent legal advice from a qualified Australian solicitor
• The solicitor must provide comprehensive advice about the agreement’s implications
• Following this consultation, the legal advisor must complete what’s commonly called a Solicitor’s Certificate (formally known as a Statement of Independent Legal Advice)
• Only after this certification process can parties proceed to sign the agreement.

Legal Effect & Scope:

When properly executed, Financial Agreements carry significant legal weight. They effectively remove the Family Court’s authority to make determinations about financial matters covered in the agreement. This creates what legal professionals describe as “contracting out” of the standard court process for property settlements.

The scope of these agreements is flexible:

• Comprehensive agreements can cover the entire financial arrangement between parties
• Alternatively, they may focus on specific elements, like partner maintenance obligations
• Many individuals use these agreements specifically to waive rights to ongoing financial support from their former partner

Through careful drafting and proper execution, Financial Agreements provide couples with control over their financial futures, whether entering or exiting a relationship.

Already have a drafted agreement and need independent legal advice? You can find out more and get started online here.