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The Role of Independent Legal Advice in BFAs

It's not optional: each partner must see their own lawyer before signing. Here's why it matters and what to expect.

Why You Need Independent Legal Advice for a BFA

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) Legal Advice Certificate

Before signing, each party must have received advice from a legal practitioner independent of the other party about:

  1. The effect of the agreement on their rights
  2. The advantages and disadvantages, to that party, of making the agreement
  3. Whether or not it is to the advantage of that party, at that time, to make the agreement
  4. Whether or not it is prudent for that party to make the agreement at that time

(1)(c) Signed Certificate

The legal practitioner must sign a certificate stating that they provided this advice.

Result if no certificate: The BFA is invalid under s. 90G(1A). No exceptions.

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 Family Court would:

  1. Identify the property pool
  2. Assess contributions (financial and non-financial)
  3. Evaluate future needs under s. 75(2)
  4. Determine what's "just and equitable"

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. Advise Whether It's Prudent to Sign

This is the most important part. Your lawyer must give you their professional opinion: 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 Certificate (s. 90G(1)(b))

If you decide to proceed, your lawyer will sign a certificate confirming they:

  • Provided independent legal advice
  • Explained your rights, advantages, disadvantages, and whether it's prudent to sign
  • Witnessed your signature on the BFA

The certificate is annexed to the BFA. Without it, the BFA is invalid.

Sample Certificate Language

Here's what a typical s. 90G certificate looks like:

Certificate of Independent Legal Advice
I, [Lawyer Name], of [Law Firm], certify that:

  1. I provided independent legal advice to [Client Name] before they signed this Binding Financial Agreement dated [Date].
  2. The advice I provided included:
    (a) The effect of the agreement on [Client's] rights;
    (b) The advantages and disadvantages of making the agreement;
    (c) Whether it is to [Client's] advantage, at this time, to make the agreement;
    (d) Whether it is prudent for [Client] to make the agreement at this time.
  3. I am independent of the other party to this agreement.
  4. I witnessed [Client's] signature on this agreement.

Signed: ____________________
Date: ____________________
[Lawyer's practising certificate number]

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 certificate), the BFA is invalid under s. 90G(1A).

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 void.

Exception: Section 90K allows a court to enforce a BFA without legal advice in very rare hardship cases, but 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.

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