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Financial Separation Agreement
22 Apr 2024

Finding Your Way Financial Separation Agreements in Australia: A Crucial Manual

By Family Lawyers Mackay, 22 Apr 2024
separation and divorce

Your former partner may legally assert your assets up to twelve months after divorce and twenty-four months after de facto separation. A Financial Separation Agreement is a must to secure yourself and recover financial independence. These agreements list the assets and liabilities of both parties, along with guidelines for their division. In Australia, they are known as binding financial agreements

A financial separation agreement, or a separation contract, is a legal contract that partners can enter into in Australia. This agreement offers the parties engaged a legally binding regulation for dividing property, assets, and liabilities.

A disagreement over assets without an enforceable agreement may result in prolonged, stressed Family Court proceedings that cost tens of thousands of dollars. The court may eventually impose a division that frustrates everyone. The simplest option is to sit down and prepare a Financial Agreement, even though communicating with the other party can be exhausting.

Financial Separation Agreement in Australia

A Financial Separation Agreement is a legal contract granted by two individuals who terminated their marriage or de facto relationship. Even if all its assets and liabilities are in their names, both sides of this agreement must precisely list them. The agreement must also contain detailed instructions for distributing these assets and liabilities. The process might include assigning responsibility for selling assets, transferring ownership, or continuing to make payments.

A Financial Separation Agreement includes agreed-upon facts about the relationship and separation, clauses concerning spousal maintenance, and other sections required to comply with Australian law.

Commonly listed assets found in a Financial Separation Agreement include:

  • Household assets, including financial ones
  • Bonds, shares, superannuation, and savings accounts
  • Furniture, automobiles, and additional home furnishings
  • Valuables such as jewellery
  • Enterprises that are owned by both sides

A person’s liabilities are all their debts, even if they have ongoing payments. Typical responsibilities consist of:

  • Credit cards, mortgages, and personal loans 
  • Utility and rate 
  • Business loans which a person may be responsible for
  • Unpaid tax bills.

A Financial Separation Agreement is also known as a:

  1. Separation Agreement 
  2. De Facto Separation Agreement
  3. Financial Agreement
  4. Legal Separation Agreement
  5. Marriage Separation Agreement
  6. Separation Form


By consulting one of our accredited family law mackay specialists.

The Benefits of a Financial Agreement

Financial agreements are effective because they help couples proceed with family law to avert costly and prolonged legal conflicts over economic issues. They confirm that each person’s monetary circumstance is considered when the partnership ends. The agreements are adjustable enough to meet each couple’s specific essentials. They can be altered or terminated at any time with the consent of both parties.

A BFA has numerous advantages, such as:

  • Offering precise and clear data regarding who is liable for what and who possesses what
  • Preventing arguments over property and money
  • Preventing wasted time, tension, and legal expenses if a relationship fails.
  • Maintaining the family law system

Steps to Creating a Binding Financial Agreement After Separation

You should do some things first if you and your partner consider getting into a BFA.

Search for Legal Advice:

Both parties must separately speak with legal counsel before signing a BFA. This ensures that every individual remains conscious of all aspects of the contract and its consequences. Under the Family Law Act, obtaining independent legal representation is also essential for the enforceability of the BFA.

Create a Financial Disclosure:

Both parties must provide complete and open financial disclosures. This process involves revealing every property, debt, and resource. You must disclose your earnings, costs, and debts. The following must happen so that both spouses are fully conscious of the marital asset pool in the case of separation.

Draft the Agreement: 

Your lawyer will aid you in drafting the financial agreement. Listed in the agreement are what follows:

  • The names and locations of the individuals involved
  • Agreement date 
  • Asset and responsibility details for each party
  • How assets and liabilities will be divided.
  • Any additional terms and conditions that must be included

Sign the Contract

Your lawyer will guide you in signing the Financial Agreement once you both have consented to its conditions.

Independent Legal Advice

As previously stated, each party to the financial agreement needs legal advice. This advice must be provided independently by two different lawyers, and each lawyer must sign a certificate of independent legal advice in the BFA

Following these steps will help to ensure that your BFA is legally binding and enforceable in court.


By consulting one of our accredited family law mackay specialists.

Who is Eligible for a Financial Agreement?

Prenuptial and financial agreements are legal documents that partners can use to explain how they will manage their assets during and after their relationship. Financial agreements may cover asset division, spousal maintenance, superannuation, and property ownership. They can be created before, during, or after a relationship ends. Couples who can do the following may get into financial agreements:

  • Married. 
  • Planning to marry 
  • Presently, in a de facto relationship 
  • separated from a marriage or de facto relationship.

If you and your partner have already signed a BFA, seek advice from skilled counsel. This phenomenon will confirm your rights and interests and help ensure the current financial agreement is legally binding.

Australia’s Legal Requirements

Financial separation agreements in Australia are only legally binding if one fulfils several criteria. Among these necessities are:

  • Legal Advice: Each party needs independent legal counsel. The following ensures that everyone is conscious of the agreement’s implications.
  • Complete Financial Disclosure: Parties must reveal their economic situation to one another.
  • Voluntary Agreement: The Agreement must be made voluntarily, without pressure or excessive influence.

Ensuring your financial separation agreement meets legal requirements is critical for its enforceability in Australia.

Provision for Financial Agreements Under the Family Law Act 1975 

Making financial agreements at various stages of a relationship or marriage is possible. The Family Law Act of 1975’s Part VIIIA provides the following guidelines for financial agreements involving married individuals:

  • Section 90B financial agreements made before marriage; or
  • Section 90C financial agreements made during a marriage; or
  • Section 90D financial agreements are made after the divorce order is made.

The Act’s Part VIIIAB supplies the following regulations for financial agreements about de facto relationships:

  • Section 90UB financial Agreement made before a de facto relationship or
  • Section 90UC financial agreements made during a de facto relationship or
  • Section 90UD financial agreements after the breakdown of a de facto relationship.

Financial agreements 90D (Divorce Agreement) eliminate the need for the couple to file for divorce, lowering the possibility of drawn-out legal proceedings and guaranteeing a particular result.

Sections 90G and 90UJ of the Family Law Act set the technical prerequisites for binding an agreement. These sections direct that, before signing the contract, each party must obtain independent legal guidance from a legal practitioner regarding the agreement’s impact on their privileges and the advantages and disadvantages of entering into the contract when the advice is given.

Differences between a Financial Separation Agreement and a Divorce Agreement

Knowing the differences between a divorce and a financial separation agreement is essential. Despite their apparent resemblance, they have different works and deal with various aspects of the separation method.

A financial separation agreement addresses the allocation of assets, property settlement, monetary responsibilities, and other economic problems. It is a contract with legal force that makes the financial arrangements between divorcing parties clear and specific.

A divorce agreement, sometimes called a dissolution of the marriage agreement, focuses on the actual dissolution of the marriage. It consults things like terminating the marriage, returning the parties to their former legal status as single people, and assigning parenting duties.

A divorce agreement typically arises after a marriage concludes. Yet, individuals can create a financial separation deal before, during, or after a wed or de facto relationship. These agreements, but assisting various purposes, often fall together in the more extensive procedure for dissolution.

What is a Binding Financial Agreement

In Australia, a financial agreement is Popularly known as a Binding Financial Agreement. It is a contract separation agreement. A BFA can be used to:

  • Division of property and resources among multiple individuals 
  • Specify the expenses (such as who pays the mortgage, groceries, etc.). 
  • Oversee and distribute funds and possessions among two or more parties.
  • Specify how assets and money will be distributed in the event of a death.


Managing finances during a divorce can be difficult, but preparing a financial separation agreement can give you management, clarity, and stability about your financial future. You can draft a legally enforceable financial agreement that fits your unique situation by being aware of the helpful aspects, taking the necessary steps, and avoiding common mistakes.

Remember to get distinct legal counsel, provide every relevant financial information, and discuss the essential elements of a financial separation agreement. If other approaches—like collaboration, mediation, or arbitration—work better for you in this particular instance.

To take control of your financial future after separation, you must carefully consider, communicate openly, and focus on achieving a fair and equitable agreement. This approach enables you to move forward confidently and rebuild your financial stability.

For expert legal advice and assistance navigating financial separation agreements, contact Family Lawyers Mackay today.


By consulting one of our accredited family law mackay specialists.


  • Are separation agreements legally binding?

In Australia, separation agreements constitute a form of binding financial agreement. They are legal and enforceable, provided they are properly executed. Suppose your ex-partner fails to adhere to the agreement by paying agreed-upon alimony or child support. In that case, you can seek court enforcement of the contract.

  • In Australia, do binding financial agreements expire?

No, in Australia, legally enforceable financial agreements never expire. They are enforceable until they become modified or ended. This implies that both parties risk legal penalties if they don’t follow the terms of the deal. Speaking to a legal advisor if you have any queries concerning your legally binding Financial Agreement is advisable.

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