One of the top reasons for signing a BFA is asset protection. If you've built up a nest egg, own property, run a business, or received family money, a BFA can legally lock in what stays yours, even if the relationship turns south.
What Assets Can You Protect?
Under Australian family law, almost everything acquired during a relationship becomes part of the "property pool" subject to division under s. 79. A BFA lets you carve out exceptions:
Pre-relationship Assets
Property, savings, or investments you owned before the relationship began can be quarantined as "separate property." Common examples:
- The house you bought before you met
- Inheritance from your late grandparents
- Shares or crypto portfolios you accumulated while single
- Your established business or professional practice
Future Inheritances & Gifts
BFAs can specify that future gifts or inheritances stay with the recipient, not the relationship pool. This is especially important for family farms, businesses, or generational wealth.
Business Interests
If you're a business owner, director, or partner in a professional firm, a BFA can protect:
- Business equity and goodwill
- IP and trademarks
- Client lists and contracts
- Future business growth
Without a BFA, your ex-partner may claim a share of business value under s. 75(2) homemaker and parenting contributions. A BFA can set clear boundaries.
Superannuation
Super is one of the largest assets most Aussies have, and it can be dealt with in a BFA under Part VIIIB of the Family Law Act. A BFA can specify:
- Each party retains their own super
- Super is split, so that part of one party's interest is paid to the other
- Super splitting only applies to contributions made during the relationship
On an agreement made before or during a relationship, the first of those is the only one myBFA drafts: each party keeps their own super. Splitting is available on separation and divorce agreements. See superannuation in a BFA for the detail.
When Can a Court Set a BFA Aside? (Section 90K)
A properly made BFA is binding, and a court can only set it aside on the specific grounds listed in s. 90K of the Family Law Act (or the equivalent provision, s. 90UM, for de facto couples). There is no general "fairness" review: a court won't overturn an agreement simply because one person ends up with less than they might have received if a court had divided the property. The grounds focus mainly on how the agreement was made, plus a few specific later events. They include where:
- the agreement was obtained by fraud, which includes failing to disclose a material matter
- one party acted unconscionably in the making of the agreement
- the agreement is void, voidable or unenforceable under the general law
- a party entered into it to defeat the claims of creditors, or of a de facto partner
- circumstances since signing make it impracticable to carry out
- since signing, there has been a material change in circumstances relating to the care, welfare and development of a child, and the child (or the parent caring for them) would suffer hardship if the agreement stood.
This is why full financial disclosure and independent legal advice matter. Honest disclosure guards against the most common ground for challenge, and independent legal advice is a requirement for a BFA to be binding in the first place.
A BFA isn't a tool to rip off your partner. An agreement negotiated openly, with full disclosure and proper advice on both sides, is far harder to challenge, and it lets both of you protect what matters while treating each other fairly.
What You Can't Protect
BFAs cannot override child support obligations (Child Support Assessment Act 1989) or parenting arrangements. Financial agreements are about money and property; kids are a separate legal area.
The Bottom Line
A well-drafted BFA means you both know what to expect. No surprises, no "what ifs", just certainty. You set the rules. You live by them. And if things don't work out, you've already agreed on a fair outcome.
