‍Is a Binding Financial Agreement (BFA) the same as a Prenup?

The legal term Binding Financial Agreement (BFA) is the correct wording to use in Australia for this kind of agreement.

Q: It's the same thing as a prenup right?
A: Yes, sort of …

In order to provide some context, a Binding Financial Agreement (BFA) has in the wider community (including overseas and in the media) commonly and historically been referred to as a Prenuptial agreement or Prenup.

A Binding Financial Agreement (BFA) can be entered at any time

1️⃣ As a Prenup, Postnup, after the parties have separated, or in the case of de facto relationships, at any time in the absence of nuptials altogether; and could alternatively be

2️⃣ Called a Separation Agreement, Cohabitation Agreement or Divorce Agreement.

Just because the name uses the word “Binding” does not make it so!

Whilst the parties may include the word binding in the name or within the body of the agreement, simply using the word binding does not of itself make the agreement legally binding.

Whether a Binding Financial Agreement (BFA) is in fact legally binding* is a determination which can only be made by the Court.

Important Note:

* In order to be legally valid and actually in fact “legally binding”, a Binding Financial Agreement (BFA) must not be susceptible to being set aside by the Court for any reason. ‍

For a detailed discussion of when a Binding Financial Agreement (BFA) can be set aside, please refer to the separate FAQ on this topic.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.