Binding Financial Agreement Template (Australia)

Choose the right section of the Act before you draft anything

Which section the agreement is made under depends on the couple's status at the time it is made, and it has to be stated in the agreement. For married couples, the Act provides for agreements made before marriage, during a marriage, and after a divorce order. For de facto couples, Part VIIIAB provides the equivalents: before a de facto relationship, during one, and after one breaks down.

The widely copied free version has a single blank recital — 'the Parties are currently ______' — with no guidance at all. This template makes the relationship status a selectable field and prints the correct recital and section reference for the option chosen, because getting this wrong at the top of the document undermines everything below it.

The independent legal advice requirement is the whole ball game

Under the Family Law Act 1975 (Cth), a financial agreement is binding only if each party was provided, before signing, with independent legal advice from a legal practitioner about the effect of the agreement on that party's rights and about the advantages and disadvantages of making it; each party was given a signed statement by that practitioner confirming the advice; and a copy of each statement was given to the other party or their lawyer. The agreement must also not have been terminated or set aside.

One lawyer cannot advise both parties. Each person needs their own, and the practitioner's signed statement is annexed to the agreement. This template includes those annexures as part of the document rather than leaving them to be improvised, and it states in the operative terms that the agreement does not become binding until the requirement is satisfied.

Disclose properly, and evidence it

The Act does not spell out disclosure as a validity condition in the same way, but the courts have consistently treated material non-disclosure as a route to setting an agreement aside, because an agreement obtained by fraud — including non-disclosure of a material matter — can be set aside.

This template treats disclosure as an evidenced step rather than a recital: schedules of assets, liabilities, income, superannuation interests and financial resources for each party, each with a value and a valuation date, signed and dated as at the same day the agreement is signed. That schedule is what protects the agreement years later, when one party says they did not know about something.

Deal with superannuation and spousal maintenance explicitly

Superannuation is dealt with under its own part of the Act, and a superannuation-splitting provision has procedural steps of its own — including giving the trustee of the fund the opportunity to be heard before the agreement is relied on to bind them. Do not treat a super interest as though it were an ordinary asset in the property schedule.

Spousal maintenance is also treated separately: a provision about maintenance is only effective if the agreement specifies the party for whose maintenance it provides and the amount or value attributed to it. A general statement that neither party will claim maintenance, without that specificity, may not do what the parties think it does. This template gives both topics their own clauses with the specificity the Act calls for, and flags them for the lawyers who will settle the final wording.

Know the grounds on which an agreement can be set aside

An agreement can be set aside for reasons including fraud or material non-disclosure, unconscionable conduct, and a material change in circumstances relating to the care, welfare and development of a child that would cause hardship. The High Court's decision in Thorne v Kennedy [2017] HCA 49 set aside agreements on the unconscionable conduct ground, in circumstances involving pressure and urgency shortly before a wedding.

The practical lessons are drafting lessons: leave real time between the draft and the wedding, give each party genuine opportunity to negotiate rather than presenting a take-it-or-leave-it document, record the disclosure, and consider a review clause for the birth of a child. This template builds in a signing timeline and a review-trigger clause for exactly those reasons.

What this template is, and what it is not

It is a structured, well-organised draft that covers the property, liabilities, superannuation, maintenance, disclosure, termination and review provisions a financial agreement usually needs, with the certificate annexures attached — the document to take to your solicitor so the drafting time is spent on your circumstances rather than on structure.

It is not a binding financial agreement on its own, and no downloadable file can be. Nobody has reviewed it for your circumstances, and the advice requirement in the Act cannot be satisfied by a template. Use it to prepare, then have each party's own lawyer settle and certify it.

Clause-by-clause guide

Recital of status and section

States whether the parties are engaged, married, in a de facto relationship or separated, and which section of the Act the agreement is made under.

Purpose and scope

Identifies the financial matters the agreement covers, and expressly identifies anything it does not.

Independent legal advice

Records that each party received advice before signing from their own practitioner, and that the signed statements are annexed and exchanged.

Financial disclosure schedules

Assets, liabilities, income, superannuation and financial resources for each party, with values and a valuation date.

Separate property

What each party brings in and keeps, including property acquired by gift or inheritance and its proceeds.

Joint property and the family home

How jointly acquired property is held, how contributions to the home are treated, and how it is divided.

Liabilities

Which debts each party keeps, and how joint borrowings are dealt with on separation.

Superannuation

How superannuation interests are treated, and any splitting provision — with the trustee procedure noted for the lawyers.

Spousal maintenance

Deals with maintenance specifically, naming the party and the amount or value where a provision is made.

Distribution on separation

The mechanism that applies if the relationship ends: who gets what, valuation dates, and the timetable for transfers.

Review triggers

Events — the birth of a child, a stated number of years, a major change in circumstances — at which the parties agree to review the agreement.

Termination

How the agreement can be brought to an end, which the Act requires to be done in a specific way.

Separation declaration

The declaration needed before certain agreements take effect, included as an annexure to be completed at the time.

Certificate annexures

The signed statements of independent legal advice from each party's practitioner, without which the agreement is not binding.

Australian compliance checklist

These are the requirements that decide whether a financial agreement is binding. Every one of them is for the parties' own lawyers to confirm — this list is a preparation aid, not advice.

• Make the agreement under the correct section

  The Family Law Act 1975 (Cth) provides separately for agreements made before marriage, during a marriage and after a divorce order, and Part VIIIAB provides the equivalents for de facto relationships before, during and after the relationship. State the section in the agreement.

  Federal Circuit and Family Court — financial agreements

• Provide independent legal advice before signing, and annex the statements

  Each party must have been provided with independent legal advice about the effect of the agreement on their rights and its advantages and disadvantages before signing, must have been given a signed statement from that practitioner confirming it, and a copy must go to the other party or their lawyer.

  Family Law Act 1975 (Cth), section 90G

• Use a different lawyer for each party

  The advice must be independent. One practitioner cannot advise both parties, and using the same firm creates a conflict that can undermine the agreement.

• Complete a separation declaration where one is required

  Certain agreements do not take effect in relation to property until a separation declaration has been made. Confirm with your lawyer whether your agreement needs one and complete it at the right time.

• Deal with superannuation under the right part of the Act

  Superannuation splitting has its own regime and its own procedural steps, including the trustee's opportunity to be heard. Do not treat a superannuation interest as an ordinary asset.

• State maintenance provisions with the required specificity

  A provision about spousal maintenance is only effective if the agreement specifies the party for whose maintenance it provides and the amount or value provided for that purpose.

• Understand the set-aside grounds before you rely on it

  A court may set an agreement aside for reasons including fraud or material non-disclosure, unconscionable conduct, and a material change in circumstances relating to a child that would cause hardship.

  Family Law Act 1975 (Cth), section 90K

• Leave time before a wedding

  Agreements signed under time pressure shortly before a wedding have been set aside for unconscionable conduct. Start months ahead, give both parties genuine room to negotiate, and record the timeline.

• Check the tax and duty position

  Transfers under a financial agreement can have capital gains tax and state duty consequences, and concessions may apply on relationship breakdown. Confirm with your accountant or lawyer before agreeing who transfers what.

How to prepare a binding financial agreement

1. Choose the section that fits your situation. Select whether you are engaged, married, in a de facto relationship, or separated — the template prints the matching recital and section reference.
2. Complete the disclosure schedules. List each party's assets, liabilities, income, superannuation interests and financial resources, with values and a valuation date.
3. Set out what happens to property. Record what stays separate, how joint property and the family home are treated, and what happens to each item if the relationship ends.
4. Deal with superannuation and maintenance separately. Complete those clauses specifically, and flag them for your lawyer — both have their own statutory requirements.
5. Send the draft to each party's own lawyer. Each party instructs a different practitioner, who advises them on the effect, advantages and disadvantages before anyone signs.
6. Sign only after the advice and certificates. Each practitioner signs their statement of advice, the statements are exchanged, and the parties then sign and each keeps an original.

Frequently asked questions