The Three Key Circumstances for a BFA
The Family Law Act 1975 recognises three distinct timing scenarios for BFAs, each governed by different sections and serving different purposes:
1. Before Marriage (Section 90B)
This is the classic "prenup" scenario for married couples. Section 90B applies when parties are contemplating entering into a marriage and want to make a financial agreement before the marriage occurs. These agreements typically focus on:
- Protecting pre-existing assets (inheritance, property, business equity)
- Defining separate vs. joint property going forward
- Establishing contributions each party brings into the marriage
- Setting expectations around future earnings or asset growth
Key advantage: Clarity from day one. No emotional baggage, just smart planning.
Note: De facto couples contemplating cohabitation fall under sections 90UB, 90UC, and 90UD (Part VIIIAB of the Family Law Act), which operate similarly but with their own specific requirements.
2. During the Relationship (Section 90C)
Life changes. You bought a house together, started a business, had kids, or received a windfall inheritance. A mid-relationship BFA (sometimes called a "postnup") lets you update your financial arrangements to reflect current reality. Common triggers include:
- Major asset acquisitions (property, business, investments)
- Significant change in income or wealth
- Blending families (children from previous relationships)
- One partner giving up work to care for children
Key advantage: Adapts to circumstances without the courts getting involved.
3. After Separation (Section 90D)
Post-separation BFAs are powerful settlement tools. Instead of battling it out in Family Court for 12-24 months (and spending $20,000+ each on lawyers), you and your ex can agree on a property split, debt allocation, and super division, then lock it in with a BFA.
This is functionally similar to Consent Orders but doesn't require court approval or filing fees. The trade-off? It must still meet all the strict BFA requirements (independent legal advice, full disclosure, etc.).
Key advantage: Faster, cheaper, and more private than court proceedings.
Which One Do You Need?
Whatever the timing, a BFA gives you both control over "who gets what" instead of leaving it to a judge applying the four-step process under s. 79 of the Family Law Act (identify, value, assess contributions, consider s. 75(2) factors). You set the rules. You live by them.
No confusion. No surprises. Just certainty.