For relationships that break down after 1 March 2009, new laws apply under the Family Law Act.

The same legal principles that apply to financial settlements between parties to a marriage are now applied to settlements between de facto partners.

Superannuation can be split between de facto partners following their relationship breakdown. Spousal maintenance can also be ordered.

Cases between de facto partners pertaining to their children have been regulated by the Family Law Act since 1988.

The Court will consider the length of the relationship, your living arrangements, how you arranged your finances and property ownership, whether there was a sexual relationship, whether or not you had or cared for children and the way you presented your relationship in public.

De facto couples can make their own financial arrangements, like any other legally married couple in Australia, or they can turn to the courts to receive a court order. In order to turn to the courts, the de facto couple must meet one of the following conditions:

1. The relationship existed for at least two years OR
2. The couple has a child together OR
3. One person made significant financial or nonfinancial contributions to the relationship and would be at a disadvantage if no order was granted OR
4. The relationship was registered

You can make an application for a property settlement under the Family Law Act if any of the following apply:

• your same sex relationship lasted for at least 2 years;
• you have a child with your partner; and
• you have made a substantial contribution to the property or finances of your partner.

The same laws about property apply whether or not you were married or in a same sex relationship. You can start negotiations about property as soon as the relationship has broken down.

In a same sex relationship, you must commence property or maintenance proceedings within two years of your separation.

De Facto and Same-Sex Couples and Property

Same-sex couples, like all de facto couples, may turn to the courts for orders on division of property, superannuation and maintenance if the relationship breaks down.  The rules applying to de facto couples are somewhat different, though, than those applying to legally married couples.

Can all De Facto couples obtain these orders?

No! Couples can receive these orders from the court only if the court is satisfied that the couple meets one of the following criteria:

• The relationship was at least two years long
• The couple has a child together
• One person made significant financial or nonfinancial contributions to the marital property or as a homemaker or as a parent and would be disadvantaged if the order was not granted
• The relationship was registered (in those states and territories where such registration is possible)

Does it matter where you live?

Yes! The laws apply to de facto couples who have a geographical connection with New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory, the Northern Territory, Norfolk Island, Christmas Island or the Cocos (Keeling) Islands.   Geographical connection means that at the time the relationship broke down, the couple lived in one of those states or territories.

A court may still give orders on property division, superannuation and maintenance if:

1. The couple lived in one of the above States or Territories during at least one third of their de facto relationship or;
2. The person applying to court for the order made substantial financial or nonfinancial contribution in one of the above States or Territories or;
3. One of the partners ordinarily lives in one of the above States or Territories at the time the application to court is made.

Does it matter when the relationship broke down?

Yes! The Commonwealth laws allowing de facto couples to divide property came into affect only on August 1, 2009 (and in South Australia only on July 1, 2010).  Therefore, in those states and territories where they apply, it’s only for couples whose relationship broke down after those dates.  If a relationship broke down before August 1, 2009 (or July 1, 2010 in South Australia), the laws of the particular State or Territory apply, unless both parties request in writing that the new laws apply.

One or both parties must apply for these orders within 2 years of the breakdown of the de facto relationship.

Can a couple make an arrangement on their own?

Definitely!  De facto couples can make their own arrangements regarding their property, including debts, assets, superannuation and spousal maintenance. 

Financial agreements are covered under Part VIIIA of the Family Law Act of 1975.  These agreements may refer to:

1. Property and financial resources and how they will be dealt with if the marriage breaks down or;
2. The maintenance (financial support) of either of the spouses during and/or after the marriage or;
3. Any other matter related to (1) or (2) above

This agreement can be made at any time during the relationship or after it breaks down (but you must apply for the orders within two years of the breakdown – see above)  and it can be formalized by the court by applying for a consent order.  Once a consent order is made, it has the validity and enforceability of a court order issued by a judge.  Both parties must apply for a consent court order for a property agreement by completing the Application for Consent Orders.  You do not need to go to court to apply for consent orders.

This financial agreement is only binding if:

1. both partners signed it and
2. both partners received independent legal advice about the agreement.   Partners are not allowed to receive advice from the same lawyer.

For further information on property division in the court see “Property and Money”.

Same-sex couples have the same rights and obligations under Australian family law as other couples when it comes to financial agreements, property settlements and relationship breakdown.

A Binding Financial Agreement (BFA) can be entered into by eligible same-sex couples:

• before entering a marriage or de facto relationship;
• during a relationship; or
• after separation.

A BFA allows couples to agree in advance how certain financial matters will be dealt with if their relationship ends.

What Can a Binding Financial Agreement Cover?

A Binding Financial Agreement may address a range of financial issues, including:

• responsibility for household and relationship expenses;
• whether particular assets are treated as individual or joint property;
• how property acquired during the relationship will be treated;
• responsibility for debts and liabilities;
• how assets and financial resources will be divided if separation occurs; and
• spousal maintenance arrangements.

The agreement can be tailored to reflect the individual circumstances, financial arrangements and future intentions of each couple.

Why Might Same-Sex Couples Consider a Binding Financial Agreement?

There are many reasons a same-sex couple may consider entering into a BFA, including:

• protecting assets accumulated before the relationship;
• clarifying financial arrangements where one or both partners have significant assets;
• protecting business interests, trusts or investments;
• providing certainty for blended families;
• addressing differences in wealth, income or financial contributions; and
• reducing uncertainty in the event of separation.

Every relationship is different, and the suitability of a Binding Financial Agreement will depend on each couple’s circumstances and objectives.

Do I Need Legal Advice Before Signing a Binding Financial Agreement?

Yes.

Binding Financial Agreements are complex legal documents and strict requirements apply for an agreement to be legally binding.

If you have reached an agreement with your partner, it is important to obtain independent legal advice before signing any document.

An experienced family lawyer can help you understand:

• your legal rights;
• the effect of the proposed agreement;
• the advantages and disadvantages of entering into the agreement; and
• whether the agreement properly reflects your intentions.

Binding Financial Agreement Lawyers Melbourne

At Mathews Family Law & Mediation Specialists, our Accredited Family Law Specialists assist same-sex couples with:

• preparing Binding Financial Agreements;
• reviewing proposed agreements;
• providing independent legal advice;
• advising about property and financial arrangements; and
• resolving complex financial matters following separation.

Our approach combines specialist family law expertise with practical advice designed to provide certainty and protect your interests.

Contact Mathews Family Law & Mediation Specialists to discuss whether a Binding Financial Agreement is appropriate for your circumstances.

About Vanessa Mathews — Accredited Family Law Specialist

This page was prepared and reviewed by Vanessa Mathews, Principal of Mathews Family Law & Mediation Specialists. Vanessa is an Accredited Family Law Specialist, Accredited Family Dispute Resolution Practitioner (FDRP) and Mediator who practises exclusively in family law. She assists clients throughout Australia with separation, divorce, parenting disputes, property settlements, financial agreements and other complex family law matters.

Helping families resolve conflict through specialist legal expertise and constructive dispute resolution.

Last reviewed: 24 July 2026

Disclaimer: This page provides general information only and does not constitute legal advice. Every family law matter is different and you should obtain advice tailored to your circumstances.

Many people refer to a Binding Financial Agreement (BFA) as a “prenup” or prenuptial agreement.

In Australia, a prenuptial agreement can be legally binding, but only if it is prepared and entered into in accordance with the requirements of the Family Law Act 1975.

A Binding Financial Agreement is a legal agreement that allows couples to set out how their financial matters will be dealt with if their relationship breaks down.

What Should Couples Discuss Before Entering a Binding Financial Agreement?

A Binding Financial Agreement (BFA) is not only a legal document — it is also an opportunity for couples to have open and practical discussions about their financial expectations and future plans.

Before entering into a Binding Financial Agreement, couples should consider discussing important issues such as:

Employment and Financial Contributions

• Who will work during the relationship?
• Will both partners continue working, or will one partner reduce or leave employment?
• How will income, expenses and financial responsibilities be managed?

Children and Family Responsibilities

• Do you intend to have children?
• Are there children from previous relationships?
• How will caring responsibilities be managed?
• How might future parenting responsibilities affect financial arrangements?

Changes in Circumstances

Relationships can change over time. Couples may wish to consider:

• What happens if one partner is unable to work due to illness, injury or disability?
• What happens if a child has additional needs requiring significant care?
• How might unexpected changes affect financial arrangements?

Future Financial Goals

It may also be helpful to discuss:

• retirement goals;
• ownership of property and other assets;
• financial priorities;
• savings and investment plans; and
• expectations about financial independence.

Why These Conversations Matter

A well-prepared Binding Financial Agreement should reflect the circumstances, intentions and priorities of both parties.

Taking the time to discuss these issues openly can help couples make informed decisions and reduce uncertainty about the future.

At Mathews Family Law & Mediation Specialists, our Accredited Family Law Specialists assist clients with Binding Financial Agreements before, during and after relationships. We provide practical advice to help ensure agreements are properly prepared and tailored to each client’s circumstances.

What Can a Binding Financial Agreement Cover?

A Binding Financial Agreement may deal with matters including:

• how property and financial resources will be divided following separation;
• responsibility for liabilities and debts;
• ownership of assets;
• financial arrangements during the relationship; and
• spousal maintenance arrangements.

The agreement can be entered into:

• before marriage or a de facto relationship;
• during a relationship; or
• after separation.

What Makes a Binding Financial Agreement Legally Binding?

For a Binding Financial Agreement to be valid and enforceable, certain legal requirements must be satisfied.

These include:

• the agreement must be in writing;
• both parties must sign the agreement;
• each party must receive independent legal advice from a qualified lawyer; and
• the required legal formalities must be followed.

The purpose of obtaining independent legal advice is to ensure each person understands the effect of the agreement and the advantages and disadvantages of entering into it.

Can a Binding Financial Agreement Be Cancelled or Set Aside?

Yes.

A Binding Financial Agreement may be terminated by written agreement between the parties.

In some circumstances, a Court may also set aside a Binding Financial Agreement, including where legal requirements have not been met or where other circumstances justify setting aside the agreement.

Because of the potential financial consequences, it is important that a Binding Financial Agreement is carefully prepared and reviewed by an experienced family lawyer.

Binding Financial Agreement Lawyers Melbourne

At Mathews Family Law & Mediation Specialists, our Accredited Family Law Specialists advise clients about Binding Financial Agreements before, during and after relationships.

We assist with:

• preparing Binding Financial Agreements;
• reviewing proposed agreements;
• providing independent legal advice;
• advising about asset protection; and
• resolving complex family law financial matters.

Our specialist family law expertise allows us to provide practical advice tailored to your circumstances.

Contact Mathews Family Law & Mediation Specialists to discuss whether a Binding Financial Agreement is appropriate for you.

About Vanessa Mathews — Accredited Family Law Specialist

This page was prepared and reviewed by Vanessa Mathews, Principal of Mathews Family Law & Mediation Specialists. Vanessa is an Accredited Family Law Specialist, Accredited Family Dispute Resolution Practitioner (FDRP) and Mediator who practises exclusively in family law. She assists clients throughout Australia with separation, divorce, parenting disputes, property settlements, financial agreements and other complex family law matters.

Helping families resolve conflict through specialist legal expertise and constructive dispute resolution.

Last reviewed: 24 July 2026

Disclaimer: This page provides general information only and does not constitute legal advice. Every family law matter is different and you should obtain advice tailored to your circumstances.