A BFA is only legally valid if both parties receive independent legal advice from separate lawyers before signing. This isn't a suggestion: it's a strict legal requirement under s. 90G of the Family Law Act 1975.
Skip this step, and your BFA is worthless.
Legal Basis: Section 90G
Section 90G sets out the formal requirements for a valid BFA. Paragraphs (1)(b) and (1)(c) mandate:
(1)(b) The Advice
Before signing, each party must have received advice from a legal practitioner independent of the other party about:
- The effect of the agreement on the rights of that party
- The advantages and disadvantages, at the time the advice is provided, to that party of making the agreement
That is the whole list. Under the earlier version of s. 90G, the advice also had to cover whether it was to the party's advantage to make the agreement and whether it was prudent to do so. The 2009 amendments removed both, but you will still see them in older precedents and certificates.
(1)(c) The Signed Statement
The practitioner gives a signed statement that the advice was provided. Under s. 90G(1)(ca), a copy of that statement then has to be given to the other party or to their practitioner. It no longer has to be annexed to the agreement, though in practice most firms still attach it.
Result if the advice requirements are not met: the agreement is not binding. A court can still declare it binding under s. 90G(1A) where it would be unjust and inequitable not to, but that is a discretion and not something to rely on.
What Does "Independent" Mean?
"Independent" means:
- Separate lawyers: Each party must have their own lawyer
- No conflict of interest: The lawyers cannot be from the same firm
- No prior relationship: Ideally, the lawyer shouldn't have a pre-existing relationship with the other party (e.g., the other party's accountant or business partner)
Can We Use the Same Law Firm?
No. Even if you see different lawyers within the same firm, courts may find that's not "independent" advice (because lawyers in the same firm share interests, fees, and potentially confidential information).
Pro tip: Use lawyers from completely separate firms. Don't cut corners.
What Your Lawyer Will Do
When you meet with your lawyer to get advice on a BFA, they will:
1. Review Your Financial Disclosure
Check that you've provided (and received) complete financial information:
- Assets (property, savings, super, business interests)
- Liabilities (debts, mortgages, guarantees)
- Income and earning capacity
If disclosure is incomplete, your lawyer will flag this and advise you to get more information before proceeding.
2. Explain the BFA in Plain English
Your lawyer will walk you through the BFA clause by clause:
- What does each clause mean?
- What are you agreeing to?
- What are you giving up?
- What happens if you separate?
No legal jargon. Just plain language.
3. Explain Your Rights Without a BFA
Your lawyer must explain what would happen if you didn't sign the BFA. Under s. 79 of the Family Law Act, the court works through five steps:
- Decide whether it is just and equitable to adjust the parties' interests in property at all
- Identify and value all the property of either party, wherever it came from and whenever it was acquired
- Assess each party's contributions: direct and indirect, financial and non-financial, including as homemaker and parent, and the effect of any family violence on a party's ability to make them
- Consider each party's current and future circumstances (the s. 75(2) factors, which include the effect of any family violence) and whether they should shift the split reached at step 3
- Check that the order it proposes to make is just and equitable in all the circumstances
Your lawyer will give you a rough estimate of what you might receive in a court property settlement (e.g., "You'd likely get 55–60% of the property pool based on your contributions and future needs").
4. Assess Advantages & Disadvantages
Your lawyer will discuss:
Advantages of signing:
- Certainty (you know the outcome)
- Privacy (no court filings)
- Cost savings (cheaper than litigation)
- Protection of specific assets (if the BFA favours you)
Disadvantages of signing:
- You might get less than a court would award
- You're giving up flexibility (locked into terms)
- You're waiving your right to apply for property orders under s. 79
- The BFA could be set aside later (if defects exist)
5. Practical advice on whether to sign
This part isn't required by s. 90G, which only asks for advice on the effect of the agreement and its advantages and disadvantages. Most lawyers will still give you their professional opinion on the question you're really asking: Should you sign this BFA?
Factors they'll consider:
- Is the outcome fair?
- Is your financial position secure?
- Are you under pressure?
- Do you fully understand the terms?
- Is the other party hiding assets?
- Could you do better in court?
If the lawyer thinks the BFA is unfair, unconscionable, or leaves you in hardship, they'll advise you not to sign. They may also refuse to sign the certificate (because signing it would breach their professional duties).
6. Sign the Statement (s. 90G(1)(c))
If you decide to proceed, your lawyer signs a statement confirming they provided independent legal advice about the effect of the agreement on your rights and about its advantages and disadvantages at the time the advice was given.
A copy goes to the other party or their lawyer. Without the advice and the statement, the agreement is not binding.
Sample Certificate Language
Here's what a typical s. 90G statement looks like:
Statement of Independent Legal Advice
I, [Lawyer Name], of [Law Firm], state that:
- I am a legal practitioner qualified to practise law in Australia.
- I provided independent legal advice to [Client Name] before they signed this Binding Financial Agreement dated [Date], about:
(a) the effect of the Agreement on the rights of my client; and
(b) the advantages and disadvantages, at the time the advice was provided, to my client of making the Agreement.Signed: ____________________
Date: ____________________
Why This Requirement Exists
Section 90G exists to protect vulnerable parties from:
- Pressure: Being coerced into signing an unfair BFA
- Lack of understanding: Not realising what they're agreeing to
- Imbalance of power: One party being sophisticated and the other naive
- Unconscionable outcomes: Agreements that leave one party destitute
Independent legal advice ensures both parties are informed and consenting, not just signing blindly.
What Happens If You Don't Get Advice?
If you sign a BFA without independent legal advice, or without the practitioner’s signed statement, the agreement is not binding. Section 90G(1A) works the other way: it is the provision a court uses to declare such an agreement binding anyway, where it would be unjust and inequitable not to.
Result: If you later separate, the BFA is unenforceable. The Family Court will ignore it and proceed with standard s. 79 property division.
All the time and money spent on the BFA? Wasted.
Can You Waive Legal Advice?
No. Section 90G is mandatory. There's no "opt-out" or waiver. Both parties must get advice, or the BFA is not binding.
Exception: Under s. 90G(1A), a court can declare a BFA binding even though the advice requirements weren't met, where it would be unjust and inequitable not to. This is exceptional and shouldn't be relied upon.
How Much Does Legal Advice Cost?
- Simple BFA: $1,000–$1,500 per party
- Complex BFA (trusts, businesses, multiple properties): $2,000–$3,000 per party
This includes:
- Reviewing the draft BFA
- Providing advice
- Negotiating minor amendments
- Signing the certificate
Pro tip: Don't cheap out. Quality legal advice protects you from a $50,000 court battle later.
Red Flags Your Lawyer Will Watch For
Good lawyers look for:
- Incomplete disclosure: Is the other party hiding assets?
- Unconscionable terms: Does the BFA leave you with nothing?
- Pressure tactics: Did the other party spring this on you last minute?
- Ambiguous drafting: Are the terms unclear or unenforceable?
- Unfair super split: Are you giving up your retirement security?
If your lawyer spots red flags, they'll advise you not to sign (or to renegotiate terms).
The Bottom Line
Independent legal advice is mandatory. It's not a box-ticking exercise: it's your protection.
Your lawyer's job is to:
- Make sure you understand what you're signing
- Warn you if the deal is unfair
- Protect you from pressure or coercion
- Ensure the BFA is legally valid
Don't skip this step. Don't use the same lawyer as your partner. Don't sign without a certificate.
Get proper advice, or don't bother with a BFA.
