Yes. In Australia, a Binding Financial Agreement may be overturned under specific circumstances detailed in the Family Law Act 1975.
However, the courts are generally reluctant to set aside a BFA, as this legal tool details how assets and property are to be divided upon separation. It is intended to provide financial security, improve clarity, and minimise conflict during what can already be a stressful time.
At Affinitas Legal, we have been helping clients to overturn BFAs in Western Australia for decades. In this guide, we’ll explain the legal grounds for overturning a BFA, outline the steps involved, and answer frequently asked questions. Keep reading to gain a clear understanding of your options before moving forward.
What is a Binding Financial Agreement?
A Binding Financial Agreement (BFA) is a legally enforceable contract between couples that outlines how their property, assets, and financial resources will be divided in the event of relationship breakdown. Available to both married and de facto couples in Australia, a BFA can be entered into:
- Before marriage or entering a de facto relationship
- During the relationship
- After separation or divorce
As the agreement is “binding,” it gives couples the ability to make private arrangements about their finances without needing court intervention. This can save time, reduce legal costs, and provide certainty about future financial obligations.
Each BFA can be tailored to suit the couple’s unique circumstances, covering matters such as property division, superannuation, spousal maintenance, and even how debts will be handled.
To ensure the agreement is valid and enforceable, both parties must obtain independent legal advice before signing.
Grounds for overturning a Binding Financial Agreement
While it can be challenging to have a BFA overturned, Australian Family Law outlines specific circumstances where it can occur.
Under the Family Law Act 1975, Section 90K applies to married couples and Section 90UM applies to de facto couples, setting out the legal grounds for when a BFA may be set aside. Discover the grounds for overturning a BFA below.
Fraud or misrepresentation
Fraud or misrepresentation is one of the primary reasons BFAs are set aside. This typically occurs when one party conceals assets, undervalues property, or provides false or misleading financial information when drafting the agreement.
Courts take financial transparency seriously. If it can be shown that one party deliberately withheld assets or misled the other about their true financial position, the agreement may be declared invalid.
Failure to comply with legal requirements
Under the Family Law Act 1975, strict legal measures must be followed for a BFA to be binding. For example:
- Both parties must receive independent legal advice before signing
- Lawyers must provide signed statements confirming that advice was provided
- These statements must be shared between both parties
- The agreement must meet all procedural and documentation requirements
If any of these crucial components are overlooked, the court may decide that the agreement is not legally enforceable.
Unconscionable conduct or duress
A BFA must be entered into freely and voluntarily. If one party was pressured, manipulated, or exploited, the court may set it aside.
This includes cases of:
- Duress: Where someone was threatened or forced to sign
- Undue influence: Where one party unfairly pressured the other
- Unconscionable conduct: Where one person exploited the other’s vulnerability, such as financial dependence, language barriers, or lack of legal understanding
Ultimately, the law protects individuals from entering into agreements where consent was not genuine.
Hardship to the child
If there is a material change in circumstances — particularly regarding children’s care and welfare — after a BFA is made, then the court may overturn the agreement.
This can happen if enforcing the BFA would cause financial hardship or fail to meet the needs of the children involved. The child’s best interests will always be prioritised in this decision.
Impracticability
Sometimes, life events make carrying out the terms of a BFA impossible or unfair.
If unforeseen circumstances mean the agreement can no longer be practically enforced — for example, because of major financial or personal changes — the court may decide to set it aside.
Void, voidable, or unenforceable agreements
Finally, a BFA may be overturned if the court finds it is void, voidable, or otherwise unenforceable. This can occur when there are drafting errors, unclear or conflicting terms, or the agreement fails to meet the legal requirements set out in the Family Law Act 1975. To stay enforceable, a BFA must be clear, accurate, and fully compliant with the law.
Process for overturning a Binding Financial Agreement
Setting aside a BFA involves a formal court process with several clear steps. While each case is unique with its own timeline and complexities, the general process to overturn a BFA is typically as follows:
1. Seek specialist legal advice
The first step is to speak with a family lawyer experienced in Binding Financial Agreements. They can review your agreement, assess the circumstances in which it was signed, and advise whether there are valid legal grounds to challenge it.
In some cases, a barrister’s opinion may also be helpful to strengthen your case before applying.
2. File a court application
If grounds exist, your lawyer will help you file an application with the Family Court or the Federal Circuit and Family Court of Australia.
This application outlines the reasons for wanting the BFA set aside and provides an initial summary of the evidence supporting your claim.
3. Gather and submit evidence
Strong evidence is critical. This may include:
- Financial records (e.g., tax returns, bank statements)
- Proof of full or partial non-disclosure of assets
- Communication records (emails, texts, letters)
- Witness statements or legal advice documentation
- Evidence of duress, fraud, or other legal grounds
The court will only set aside a BFA if the evidence clearly supports your claim.
4. Serve the application
The application, along with its accompanying documents, must be served to the other party. This step ensures that they are informed about the case and can respond accordingly.
5. Response from the other party
The other party can file a formal response defending the validity of the BFA. They may submit their own evidence and arguments to support why the agreement should remain in place.
6. Interim orders (if required)
If immediate financial or property issues need to be addressed while the case is ongoing, the court may issue interim orders to protect both parties’ interests until a final decision is made.
7. Mediation or conciliation conference
Before a full hearing, the court may require both parties to attend mediation or a conciliation conference to explore whether the dispute can be resolved without a trial. Mediation can save time, money, and stress if an agreement can be reached.
8. Court hearing
If mediation fails, the matter proceeds to a court hearing. Both parties present evidence, arguments, and witness testimony. The court will assess factors such as:
- Whether the BFA met all legal requirements
- Any changes in circumstances since it was signed
- The fairness and enforceability of the agreement
9. Court decision
Once all evidence is reviewed, the court will determine whether to:
- Uphold the BFA (leave it in place)
- Set aside the BFA (invalidate it)
- Vary the BFA (amend certain terms)
If the BFA is overturned, the parties may need to renegotiate financial or property matters through standard legal processes.
10. Appeal process (if necessary)
If either party is unsatisfied with the outcome, they may appeal the decision to a higher court. However, appeals are only permitted under specific conditions, typically when a legal mistake has occurred, and there are strict deadlines to follow. Therefore, you should seek specialist legal advice as soon as you are considering an appeal.
How to prevent your Binding Financial Agreement from being overturned
A BFA can give you peace of mind about your financial future, so long as it has been dealt with correctly. If certain legal requirements have not been met, a court may set the agreement aside.
Here are three practical steps to protect your BFA from being overturned:
Obtain independent legal advice
As mentioned above, both parties are obliged to receive independent legal advice before signing a BFA.
Your lawyer must explain:
- How the agreement affects your rights
- The pros and cons of signing it
- What it could mean for your finances in the future
If one party did not receive proper legal advice, or there’s no proof that it was obtained, the court can deem the agreement invalid.
Therefore, having an experienced family lawyer involved from the outset helps to ensure that the agreement is legitimate and more difficult to challenge later on.
Ensure full and frank disclosure
A BFA relies on complete and honest disclosure of your finances. Both parties must clearly set out all assets, debts, and financial resources, such as:
- Property and real estate
- Investments and business interests
- Superannuation accounts
- Loans, credit cards, and other liabilities
If one party hides assets or provides misleading information, the court can declare the agreement invalid because it wasn’t created on a fair and transparent basis.
Ultimately, openly sharing financial details strengthens the agreement’s accuracy and helps prevent future disputes.
Regular Updates and Reviews
Life rarely stands still, and a BFA that was suitable when you first signed it might not reflect your situation years later. Major life events that should prompt a review include:
- Having children
- A big change in income or wealth
- Starting or selling a business
- Buying or selling property
Updating your BFA when circumstances change helps keep it practical, current, and less likely to be overturned.
How likely is it that my Binding Financial Agreement will be overturned?
The likelihood of successfully overturning a BFA in Australia depends on the individual circumstances of the case and the strength of the evidence presented.
Courts don’t set aside BFAs lightly — they will only do so if there is a valid legal reason, such as fraud, duress, unconscionable conduct, or a failure to meet strict legal requirements when the agreement was made.
It’s important to understand that each application is assessed on its own merits. Even with strong evidence, the process can be complex, lengthy, and expensive. If the court decides the BFA should stand, the unsuccessful party may also be ordered to pay the other side’s legal costs.
Because of these risks, anyone considering challenging a BFA should seek specialist Family Law advice early. An experienced lawyer can assess the strength of your case, explain potential outcomes, and help you make an informed decision before proceeding.
An alternative to overturning a Binding Financial Agreement
In many cases, it is quicker, easier, and more cost-effective to negotiate a new BFA instead of overturning an existing one in court.
This approach keeps both parties in control of the outcome, helps preserve relationships, and avoids the emotional strain often associated with litigation.
Importantly, both parties must agree to revisit the terms of the existing BFA. This usually happens when circumstances change, for example, when financial positions, property ownership, or family responsibilities evolve, and the original agreement no longer reflects both parties’ intentions.
If one party refuses to renegotiate or negotiations break down, the only remaining option may be to apply to the court to have the original BFA set aside.
Obtain legal advice on your Binding Financial Agreement
Overturning a BFA is a complex legal process. Courts in Australia generally uphold these agreements; however, there are circumstances — such as fraud, duress, unconscionable conduct, or significant changes in financial or family circumstances — where a BFA can be successfully challenged.
If you believe your agreement is unfair or wasn’t made on a proper legal footing, it’s important to obtain Family Law advice as soon as possible.
At Affinitas Legal, our family lawyers in Perth understand the legal intricacies of BFAs. We can help you review your terms, explain your legal options, and guide you through the process of challenging or renegotiating the terms. Contact us today to take the first step towards a more practical and fair agreement.
Accuracy & Reliability of Information
Although every effort has been made to verify the accuracy of the information contained in this article, Affinitas Legal, its officers, employees and agents disclaim all liability (except for any liability which by law cannot be excluded), for any error, inaccuracy in, or omission from the information contained in this article or any loss or damage suffered by any person directly or indirectly through relying on this information.
