Binding Financial Agreements

At Surge Legal we specialise in drafting and reviewing Binding Financial Agreements in a variety of circumstances as follows: agreements made during the relationship, after separation or divorce, during marriage or in anticipation of marriage. We offer a fixed fee option for drafting or reviewing the agreement.

The type of the BFA you require will depend upon your particular circumstances and needs. We offer a free initial consultation to assess and advise you if a BFA is suitable for your matter.

What is a BFA?

A Binding Financial Agreement (BFA) is an agreement between the parties to a marriage or a de facto relationship made in accordance with the relevant provisions of the Family Law Act 1975.

Executing a BFA (often informally referred to as a “Prenup”) during the relationship or prior to marriage is an effective way of securing the desired division of the matrimonial property pool in the event of a potential breakdown of the relationship at a later time and providing certainty and peace of mind for all parties involved.

A BFA could also be a viable alternative to an Application for Consent Orders for couples, who have separated or divorced, and wish to formalise their agreement as soon as possible. While the turnaround time for obtaining Consent Orders from the Court is around 4-6 weeks, a Binding Financial Agreement can usually be drafted and executed in a matter of days.

In some circumstances your matter may be better suited for a BFA instead of Consent Orders, particularly if the agreement reached is not just and equitable pursuant to the Family Law Act 197

Types of Financial Agreements

Depending on the stage of your relationship and whether or not you are in a de-facto relationship or marriage, BFAs can be classified into the following three categories:

Prenuptial Agreement on a table._edited.

Pre-Nuptial Financial Agreements

These agreements are made before marriage or before the start of your de-facto relationship and must comply with sections 90B or 90UB of the Family Law Act 1975 respectively.

Financial Agreements During Cohabitation

Pursuant to sections 90C and 90UC of the Family Law Act 1975, these Financial Agreements can be made during the marriage or de facto relationship respectively.

Post-Nuptial Financial Agreements

Pursuant to sections 90D and 90UD of the Family Law Act 1975, these Financial Agreements are made after divorce for married couples or after separation for de facto relationships respectively.

Some Requirements of BFAs

Must be in writing and expressly refer to the relevant section of the Family Law Act 1975

Must be signed by both parties after each one of them have received independent legal advice

Must include a statement by a legal practitioner certifying that he/she has provided legal advice with respect to the parties' rights and advantages and disadvantages of the agreement.

What We Do

Following our initial free consultation, we commence every matter with an in-depth conference with you (by video or in-person) to advise you of your legal options and if BFA is suitable for your matter.

If executing a BFA is appropriate for your matter, we obtain detailed instructions from you and request both parties to exchange financial disclosure documents. Following the exchange of financial disclosure, we prepare a draft BFA within several days.

After the draft BFA is approved by you, we send the document to the other side's solicitor (note: it is a strict requirement for your former/current partner to obtain independent legal advice, we cannot act for both parties) for their review and execution by their client. Occasionally, the other side's solicitor will request some minor amendments to the proposed BFA and we will address these requests in accordance with your instructions.

After the draft BFA is finalised and approved by all parties, the other side will execute the Financial Agreement with their solicitor. The original Agreement signed by your current/former partner is then received by our office and we organise a conference with you at our offices for you to execute the BFA in person.

It is quite common for the Binding Financial Agreement to be prepared and executed in duplicate so that each party retains an original signed counterpart of the agreement, however this is not a strict requirement and this would often depend on the preference of the drafting party's lawyer.

Once the agreement is signed by you at our offices with a solicitor present, the agreement is dated. A copy or a duplicate of the Agreement is provided to the other side and our client would retain the original agreement.

In summary, executing a Binding Financial Agreement is an efficient, cost effective and quick way to formalise an agreement relating to the matrimonial property division in accordance with the Family Law Act 1975.

Our Fees

The costs of preparing and executing a Binding Financial Agreement depend upon various factors, including but not limited to, the value of the property pool and whether or not the agreement has been reached fully or simply in principle, or if you require us to negotiate an agreement from start to finish. The costs will usually increase if the parties are required to engage in protracted settlement discussions, conduct substantial valuations and attend to complex financial disclosure, which may require a forensic accounting expert. Each matter is assessed on a case by case basis, so please contact us for a free initial assessment and quote.