Who can enter into a Binding Financial Agreement

Eligibility Requirements to enter into a Binding Financial Agreement

Binding Financial Agreement | DIY Family Law Australia

Almost anyone is lawfully able to enter into a legally binding and enforceable Binding Financial Agreement, whether it is a cohabitation agreement, pre nuptial agreement, post nuptial agreement, separation agreement or divorce agreement.

Couples are able to enter into Binding Financial Agreement’s whether they are:

  • Heterosexual or same sex de facto couples;

  • Cohabitating or intending to cohabit;

  • Married or intending to marry;

  • Already separated;

  • Divorced.

Both parties to the Binding Financial Agreement must ordinarily be resident (living) in Australia. 

Each of the parties must have their own independent legal advice from their own lawyer, as to the terms of the agreement. 

That independent legal advice cannot be by the same lawyer, nor should it be by lawyers working in the same law firm. 

Each of the lawyers who provide the required legal advice to the parties, must sign a Certificate. 

That Lawyer’s Certificate confirms the advice required by the Family Law Act 1975, was given to their client, before their client signed the Agreement.

Who cannot enter into a Binding Financial Agreement

You cannot enter into a Binding Financial Agreement if you have already entered into a Binding Financial Agreement with another person. 

For example a man could not enter into a Binding Financial Agreement with his mistress if he already had an Agreement with his wife.

Both parties who want to enter into the Binding Financial Agreement must ordinarily live and reside in Australia.

Binding Financial Agreements: More you need to know

We explain the basics you should be aware of regarding Binding Financial Agreements in our fact sheet What is a Binding Financial Agreement.

Do you want to know what you can put into a Binding Financial Agreement and what you should be discussing with your partner before you enter into an Agreement? Find out in the fact sheet What can you include in a Binding Financial Agreement.

Can you prepare your Binding Financial Agreement yourself without a lawyer? We explain more in our fact sheet Can I prepare a Binding Financial Agreement myself.

The timing as to when you enter into your Binding Financial Agreement could be important. We discuss this in our fact sheet When can you enter into a Binding Financial Agreement.

People often commence living together, get engaged, have a child together or even get married and only then think about getting a Binding Financial Agreement. If any one of these circumstances applies to you or someone you know, you should read our fact sheet Is it too late to enter into a Binding Financial Agreement.

There are various different types of Binding Financial Agreements including cohabitation agreements, pre nuptial agreements, post nuptial agreements, separation agreements and divorce agreements. If you do not use the correct type of Binding Financial Agreement for your situation it may later be set aside meaning your partner does not have to follow it. Read more in the fact sheet Types of Binding Financial Agreements & What type of BFA do I need.

Can Binding Financial Agreements actually work to protect your assets and income from your partner? Find out the answer in our fact sheet Are Binding Financial Agreements actually Binding.

If you have or are entering into a new relationship, you also need to think about the provisions of your Will or what might happen to your assets after you die. You really need to know the information in the fact sheet How having a Binding Financial Agreement might help your Succession Planning.

Read about the advantages of making a Binding Financial Agreement in our fact sheet What are the Benefits of a Binding Financial Agreement.

There could be a downside to you of making a Binding Financial Agreement. This is discussed in the fact sheet What are the Disadvantages of a Binding Financial Agreement.

Questions including can your Binding Financial Agreement be varied, amended, changed or updated, in what circumstances might a court declare your agreement invalid and set it aside are answered in our fact sheet Can a Binding Financial Agreement be set aside, updated or terminated.

Our fact sheet How to tell your Partner you want a Binding Financial Agreement could also help you to broach the subject with your partner.

If you are separated or divorced and need to document your property settlement agreement in a legally binding and enforceable way, our fact sheet Should I use a Binding Financial Agreement or a Consent Order has important information helpful to you.


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Content By:
Michelle Beatty, Senior Lawyer
Virtual Legal

Other Questions answered in the Binding Financial Agreements Section


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