How Do You Change or End a BFA?

A BFA isn't a tattoo: you can update it if circumstances change. But just like creating the original agreement, there are strict legal hoops to jump through. Here's how to amend or terminate a BFA properly under Australian law.

Legal Basis: Section 90J

Section 90J of the Family Law Act governs the variation or termination of BFAs. It provides that a BFA can be:

• Varied (amended) by another financial agreement
• Revoked (terminated) by another financial agreement

Key principle: Any change must be made through a new written agreement that meets all the same formal requirements as the original BFA.

Three Options for Changing a BFA

1. Amendment Agreement (Section 90J)

Add to or modify the existing BFA without replacing it entirely.

When to use:

• Small changes (e.g., updating super values, adding a new asset)
• Clarifying ambiguous terms
• Adjusting one or two clauses

Requirements:

• Written document clearly identifying the original BFA
• Independent legal advice for each party (new certificates required)
• Signed by both parties and their lawyers
• Annexed to the original BFA (or explicitly incorporated by reference)

Pro tip: The amendment must comply with ss. 90B, 90C, or 90D (depending on timing). If you're amending a pre-relationship BFA during the relationship, the amendment is governed by s. 90C.

2. New BFA (Replacing the Old One)

Create an entirely new BFA that revokes and replaces the original.

When to use:

• Major life changes (having children, buying a house, starting a business)
• Significant shifts in financial circumstances
• The original BFA is outdated or no longer reflects reality

Requirements:

• All the same requirements as the original BFA:
  • Full financial disclosure (updated)
  • Independent legal advice (fresh certificates)
  • Written document signed by both parties and lawyers
• Must explicitly state it "revokes and replaces" the earlier BFA

Pro tip: Treat this like drafting a BFA from scratch. Update all asset values, disclose new acquisitions, and ensure both parties understand the new terms.

3. Termination Agreement (Section 90J)

End the BFA entirely without replacing it.

When to use:

• You no longer want a BFA (e.g., relationship has matured, trust has increased)
• You're separating and prefer to negotiate a settlement without being bound by the BFA
• The BFA is causing disputes and you'd rather start fresh

Requirements:

• Written termination agreement signed by both parties
• Independent legal advice for each party (certificates required)
• Must explicitly state the BFA is "terminated" or "revoked"

Important: Once terminated, the BFA has no effect. If you later separate, you'll be back to standard s. 79 property division (unless you make Consent Orders or a new BFA).

What You Cannot Do

❌ Informal Changes

You cannot:

• Handwrite amendments on the original BFA
• Agree verbally to ignore certain clauses
• Email each other saying "let's not follow the BFA anymore"

Why? Section 90G requires written agreements with legal advice certificates. Informal changes are not enforceable.

❌ Unilateral Changes

One party cannot amend or terminate a BFA alone. Both parties must agree and sign the new agreement.

Exception: If the BFA includes a clause allowing unilateral termination (rare), it might be enforceable, but this is legally risky and not recommended.

❌ Backdating

You cannot backdate an amendment or termination agreement to make it seem like it was signed earlier. Courts treat backdating as fraud.

The Process: Step-by-Step

Step 1: Identify the Need for Change

Life events that commonly trigger BFA amendments:

• Having children
• Buying property or starting a business
• Receiving an inheritance
• One party stops working (e.g., to care for children)
• Significant income change
• Relationship breakdown (wanting to terminate the BFA)

Step 2: Full Financial Disclosure (Again)

Update your financial statements to reflect current circumstances:

• New assets acquired
• Changes in asset values (e.g., property appreciation)
• New debts or liabilities
• Updated super balances

Exchange these updated financial statements before negotiating changes.

Step 3: Negotiate New Terms

Work with your partner (and lawyers) to agree on:

• What parts of the BFA need changing
• What the new terms should be
• Whether to amend or replace the BFA entirely

Step 4: Draft the Amendment or Termination Agreement

Your lawyer drafts the new agreement, ensuring it:

• Complies with s. 90J
• References the original BFA clearly
• Includes all necessary clauses
• Is clear and unambiguous

Step 5: Independent Legal Advice (Mandatory)

Each party must receive fresh independent legal advice on:

• The effect of the amendment/termination
• Advantages and disadvantages
• Whether it's prudent to proceed

Lawyers sign new s. 90G certificates.

Step 6: Sign and Store

Both parties sign the new agreement. Lawyers sign certificates. Keep original copies safe.

Pro tip: Store the amendment/termination agreement with the original BFA. If you ever need to enforce (or challenge) the BFA, you'll need both documents.

Common Scenarios

Scenario 1: Having Children

Original BFA: Property split 50/50, no provision for children.
Amendment: Update to specify:

• Primary carer gets family home
• Super split adjusted to 60/40 in favour of primary carer
• Provision for child-related expenses

Scenario 2: Buying a House Together

Original BFA: Each party retains their pre-existing assets.
Amendment: Add clause specifying the new house is joint property, split 50/50 (or based on contributions).

Scenario 3: One Party Starts a Business

Original BFA: No business interests.
Amendment: Quarantine the new business as separate property, protected from property division.

Scenario 4: Separation (Terminating the BFA)

Why: You've separated and the BFA feels unfair now. Both parties agree to terminate it and negotiate a fresh settlement.
Process: Sign a termination agreement, then either negotiate a new BFA or proceed with Consent Orders.

Cost & Timeframe

• Amendment Agreement: $1,000–$2,000 (legal fees for both parties)
• New BFA: $2,000–$4,000 (same as creating a BFA from scratch)
• Termination Agreement: $1,000–$2,000
• Timeframe: 2–6 weeks (depending on complexity and negotiation)

The Bottom Line

BFAs are not "set and forget." Life changes. Your BFA should too.

But, and this is critical, you must follow the legal process. Informal changes are worthless. Always get independent legal advice and document everything in writing.

Change your BFA the right way, or risk it being unenforceable when you need it most.