Step-by-Step: How to Create a BFA

Creating a BFA isn't as scary as it sounds: it's basically like any big contract, just with strict legal requirements. Here's the process for Aussie couples:

Step 1: Open Conversation (Pre-Work)

You both decide you want a formal agreement, whether before cohabitation, during the relationship, or after separation. This is where you discuss:

• Why you want a BFA
• What assets need protection
• What outcomes feel fair
• Any deal-breakers or non-negotiables

Pro tip: This isn't a negotiation. It's a conversation. The goal is mutual understanding, not winning.

Step 2: Full Financial Disclosure (Legal Requirement)

Under s. 90K(1)(b) of the Family Law Act, a BFA can be set aside if there was "failure by one party to make full disclosure." This means everything goes on the table:

Assets to Disclose:

• Real property (houses, land, investment properties)
• Personal property (cars, boats, jewellery, art)
• Financial assets (bank accounts, shares, crypto, managed funds)
• Superannuation (all funds and balances)
• Business interests (equity, goodwill, IP)
• Future interests (trusts, inheritances you know about)

Liabilities to Disclose:

• Mortgages and secured loans
• Credit card debt and personal loans
• HECS/HELP debt
• Business liabilities
• Guarantees you've signed

Pro tip: Use sworn financial statements or statutory declarations. Courts take non-disclosure seriously: if you hide assets, your BFA can be voided.

Step 3: Drafting the BFA (Lawyer Work)

A family lawyer drafts the BFA based on your circumstances. The agreement should specify:

• How property will be divided
• Who keeps what assets
• How debts are allocated
• Superannuation treatment
• Spousal maintenance (if any)
• What happens if circumstances change (e.g., having children)

The lawyer will use templates compliant with ss. 90B–90D, but every BFA is customised.

Step 4: Independent Legal Advice (Mandatory)

This is the non-negotiable part. Under s. 90G, each party must:

1. Receive legal advice from a separate lawyer (not the same firm)

2. Be advised on:

   • The effect of the BFA on their rights
   • The advantages and disadvantages of making the agreement
   • Whether it's prudent to sign

3. Have their lawyer sign a certificate confirming advice was given (s. 90G(1)(b))

Why this matters: If your lawyer doesn't sign the certificate, the BFA is invalid. No exceptions.

Step 5: Review & Negotiate

You and your partner review the draft. If either party wants changes:

• Amendments are proposed
• Lawyers review fairness implications
• New drafts circulate until both sides agree

This is where compromise happens. A BFA should feel fair to both parties, not like one person "won" and the other "lost."

Step 6: Signing & Execution

Once everyone's happy:

1. Both parties sign the BFA
2. Both lawyers sign their s. 90G certificates
3. Each party keeps an original executed copy
4. Some couples register the BFA with their solicitor's firm for safekeeping

Pro tip: Store your BFA somewhere safe (fireproof safe, bank deposit box, or trusted solicitor). You'll need it if you ever separate.

Step 7: Review & Update (Optional)

BFAs can be amended or revoked (s. 90J) by mutual agreement. Common triggers for updates:

• Having children
• Major asset acquisitions
• Significant income changes
• One partner stops working

The amendment process follows the same rules: full disclosure, independent legal advice, signed certificates.

How Long Does This Take?

• Simple BFA: 2–4 weeks
• Complex BFA (trusts, businesses, international assets): 6–12 weeks

The Bottom Line

Yes, there are legal hoops. But they exist to protect both parties. The process is designed to ensure:

• Full transparency
• Informed consent
• Fairness

A well-executed BFA gives you certainty, control, and peace of mind, and that's worth a few weeks of paperwork.