Legal Requirements for a Valid BFA
A BFA isn't legally binding just because both of you signed a piece of paper. Australian law, specifically ss. 90G and 90UJ of the Family Law Act 1975, sets out strict formal requirements. Get one wrong, and your BFA can be challenged or set aside.
Here's what your BFA must include to be valid:
1. Written Document (Section 90G(1)(a))
The agreement must be in writing. No verbal agreements, no handshake deals, no email chains. It must be a formal, executed document signed by both parties.
Pro tip: Use clear, plain language. Courts interpret ambiguous BFAs against the drafter (contra proferentem rule). Don't leave room for interpretation.
2. Independent Legal Advice (Section 90G(1)(b) & (c))
This is the big one. Each party must:
(a) Receive advice from a different, independent legal practitioner
- You can't use the same lawyer
- You can't use lawyers from the same firm
- The lawyer must be admitted to practice in Australia
(b) Be advised on specific matters:
- The effect of the agreement on their rights
- The advantages and disadvantages of making the agreement
- Whether or not it is to their advantage, at that time, to make the agreement
- Whether or not it is prudent for them to make the agreement at that time
(c) Signed Legal Advice Certificate (Section 90G(1)(b))
Before signing the BFA, each party's lawyer must provide a signed certificate confirming they gave the required advice. The certificate must be annexed to the BFA or incorporated into it.
What happens if there's no certificate?
The BFA is invalid. No exceptions (unless s. 90K hardship applies, which is rare).
Example certificate language (s. 90G(1)(b)):
"I, [Lawyer Name], certify that I provided independent legal advice to [Client Name] before they signed this agreement, and that advice included the effect of the agreement on [Client's] rights, the advantages and disadvantages, and whether it is prudent to enter into this agreement."
3. Full Financial Disclosure (Section 90K(1)(b))
Both parties must provide full and frank disclosure of their financial circumstances. This includes:
Assets:
- Real property
- Bank accounts and investments
- Superannuation
- Business interests
- Personal property (cars, jewellery, etc.)
- Trust interests and future inheritances (if known)
Liabilities:
- Mortgages and secured debt
- Personal loans and credit cards
- HECS/HELP debt
- Guarantees and contingent liabilities
Why this matters:
Section 90K(1)(b) allows a court to set aside a BFA if there was a "failure by one party to make full disclosure to the other party." Courts take this seriously. If you hide a $500k inheritance, your BFA can be voided.
Pro tip: Use sworn financial statements or statutory declarations. Exchange them before signing the BFA. Keep copies forever.
4. Voluntary Agreement (No Duress, Undue Influence, or Unconscionable Conduct)
Under s. 90K(1)(a) and (d), a BFA can be set aside if:
- It was obtained by fraud
- A party entered into it under duress or undue influence
- The circumstances make it unconscionable to enforce (e.g., one party will be left destitute)
Examples of duress:
- "Sign this BFA or I'll leave you"
- "Sign this or you can't see the kids"
- Presenting the BFA 10 minutes before the wedding
Examples of unconscionable conduct:
- One party has significantly greater bargaining power and exploits it
- The agreement leaves one party unable to support themselves
- One party didn't understand the legal effect (despite receiving advice)
Pro tip: Give each party time to consider the BFA (at least 2–4 weeks). Don't pressure them. Document the process (emails, diary notes) to prove voluntariness.
5. Compliance with Sections 90B, 90C, or 90D
Your BFA must fall into one of three timing categories:
- Section 90B: Before cohabitation or marriage
- Section 90C: During the relationship
- Section 90D: After separation
Make sure your BFA references the correct section and meets its specific requirements.
6. Proper Execution (Signing)
Both parties must sign the BFA. Each party's lawyer must also sign their s. 90G certificate. Some lawyers recommend:
- Signing in counterpart (each party signs their own copy)
- Witnessing signatures
- Dating all signatures
Pro tip: Keep original signed copies safe. You'll need them if you ever separate.
7. No Child Support Waiver (Section 90C(3))
BFAs cannot contract out of child support obligations under the Child Support (Assessment) Act 1989. Any clause attempting to do so is void.
You can agree on spousal maintenance (s. 90C(1)(b)), but not child support. Kids are protected by separate legislation.
Common Mistakes That Invalidate BFAs
- No legal advice certificates: BFA is void
- Same lawyer for both parties: BFA is likely invalid
- Incomplete financial disclosure: Risk of s. 90K challenge
- Pressure to sign: Risk of duress claim
- Unconscionable terms: Risk of s. 90K setting aside
- Ambiguous drafting: Courts may refuse to enforce
What Happens If a BFA Is Invalid?
If your BFA doesn't meet these requirements, it's not binding. The Family Court will ignore it and proceed with standard s. 79 property division. All that time and money spent on the BFA? Wasted.
The Bottom Line
BFAs have strict formal requirements for a reason: to protect both parties. Don't cut corners. Don't skip legal advice. Don't hide assets.
Get it right, or don't bother.