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  • Writer's pictureJarrod Carter

Binding Financial Agreements

Binding Financial Agreements (BFAs) are somewhat controversial in the world of family law, stemming from their dual nature of empowering individuals to privately contract their financial futures while also posing a risk of unfair treatment to vulnerable parties. On one hand, BFAs represent a powerful tool for individuals to proactively manage their financial affairs, allowing couples to delineate their financial rights and responsibilities with clarity and foresight. This private contracting is especially valuable in today's complex familial landscapes, where individuals may enter relationships with significant pre-existing assets, children from previous relationships, or future inheritance expectations. However, the controversy arises in the potential misuse of BFAs to exploit vulnerable parties. Given their private nature, BFAs can be leveraged by dominant parties to enforce unfair terms, particularly when there is a significant imbalance in financial knowledge, legal representation, or emotional pressure.

Types of BFA’s

The nature of BFAs varies depending on the stage of the relationship. Pre-Nuptial Agreements, formulated before marriage (under section 90B of the Family Law Act), set the financial groundwork in the event of a marriage dissolution. During Marriage Agreements (section 90C) address financial arrangements during the union. Post-Nuptial Agreements (section 90D) focus on asset division post-divorce. Similarly, for de facto relationships, agreements can be made before the relationship begins (section 90UB), during the relationship (section 90UC), and after the relationship ends (section 90UD). Each of these agreements serves a specific purpose, ensuring that financial matters are settled as per the couple's preferences and not through court judgments.

Pre-Nuptual and Pre-De Facto Agreements

Pre-nuptial and pre-de facto agreements offer significant benefits across a diverse array of circumstances, not just for the affluent but for anyone concerned with protecting their financial interests in a relationship. Business owners and entrepreneurs find these agreements particularly useful in ensuring that their business operations and ownership are not negatively impacted by a relationship breakdown. Individuals entering a relationship with substantial assets, such as property, investments, or significant savings, often use these agreements to safeguard their pre-existing wealth.

Those expecting to receive or who have already received a substantial inheritance may also find these agreements beneficial in ensuring that these assets remain within their family line, distinct from any relationship property settlements. For individuals with children from previous relationships, pre-nuptial or pre-de facto agreements can provide a means to protect the financial interests of these children, ensuring that assets intended for them are preserved. Professionals and high-income earners, such as doctors, lawyers, or executives, who have the potential for high earning capacity, might also consider these agreements to protect their future income and assets acquired both before and during the relationship.

Couples seeking clarity and certainty in how their assets and finances will be managed both during the relationship and in the event of a breakdown often find these agreements advantageous. They offer a clear framework that can help avoid the potential for costly and lengthy legal disputes over property and financial matters if the relationship ends. Additionally, individuals with specific financial goals or arrangements, like preserving family farms, businesses, or properties for future generations, can use these agreements to ensure their plans are honoured.

Legal Validity

The legal validity of a Binding Financial Agreement (BFA) is contingent upon meeting specific criteria that ensure both parties enter the agreement with full awareness of its implications. These conditions include the necessity for the agreement to be in writing and duly signed by both parties involved. Moreover, it's imperative that both parties receive independent legal advice regarding the agreement's impact on their rights and the advantages and disadvantages of entering into it at the time the advice was provided. This independent legal counsel is crucial to ensure that each party comprehensively understands the agreement's contents and consequences.

Thorne v Kennedy

The High Court's decision in Thorne v Kennedy [2017] HCA 49 represents a pivotal moment in the understanding and application of duress, undue influence, and unconscionable conduct within Australian contract law, particularly in the context of Binding Financial Agreements. This case involved a pre-nuptial agreement where the High Court, with a majority of five out of seven judges, concluded that the agreements were voidable due to both undue influence and unconscionable conduct under s 90K(1) of the Family Law Act 1975 (FLA).

In this landmark decision, the High Court clarified the application of these legal concepts. The trial judge initially used the term "duress," but the High Court found that "undue influence" more accurately described the situation. The High Court emphasized that undue influence occurs when a party is deprived of their 'free agency,' which differs from duress in that it focuses more on the weaker party's inability to exercise independent judgment, rather than on the threatening behavior of the dominant party.

The case of Thorne v Kennedy involved an agreement between Ms. Thorne, who was of Eastern European origin and spoke little English, and Mr. Kennedy, a wealthy Australian property developer. The couple met online, and Ms. Thorne moved to Australia to marry Mr. Kennedy. The pre-nuptial agreement was signed under circumstances where Ms. Thorne was led to believe that the wedding would not proceed without her agreement, despite legal advice indicating that the agreement was significantly to her disadvantage.

The High Court's decision also touched upon the concept of unconscionable conduct. The plurality found that Ms. Thorne was at a special disadvantage given her circumstances, including her lack of financial equality, lack of permanent status in Australia, emotional dependence, impending marriage, and lack of viable alternatives if the relationship ended. This special disadvantage was exploited by Mr. Kennedy, leading to a situation that the Court found to be unconscionable.

This case also addressed the question of whether independent legal advice negates claims of undue influence or unconscionable conduct. The High Court found that even with legal advice, these claims could still stand, as the advice given to Ms. Thorne was not sufficient to overcome the significant disadvantage under which she was signing the agreement.

The lower courts had reached different conclusions based on the same set of facts. The Federal Circuit Court and the Full Court of the Family Court had earlier found no undue influence or unconscionable conduct. The High Court's overturning of these decisions highlighted the subjective nature of these legal concepts and the importance of context in their application.

In addition to clarifying the legal landscape around these concepts, the High Court's decision in Thorne v Kennedy also underscored the importance of context and power dynamics in contractual relationships. It signaled a shift towards a more nuanced understanding of how pressure, influence, and conduct can impact the validity of agreements, particularly in personal relationships.

The Thorne v Kennedy case thus serves as a critical reference point for legal practitioners dealing with Binding Financial Agreements and similar contractual arrangements. It highlights the need for careful consideration of the circumstances under which such agreements are entered into, especially regarding the relative power, influence, and vulnerability of the parties involved. The case has become a cornerstone in Australian family law, illustrating the complexities and evolving nature of legal principles such as duress, undue influence, and unconscionable conduct, and their application in real-world scenarios.

Advantages and Disadvantages

The Binding Financial Agreement (BFA), a crucial instrument in family law, provides numerous advantages but also poses certain challenges. One of the most significant benefits of a BFA is the certainty and control it grants to both parties over the division of assets. This clarity is particularly valuable in relationships with substantial or complex financial arrangements, as it minimizes ambiguity and potential conflicts during separation or divorce. Additionally, BFAs offer protection for pre-existing assets and inheritances, allowing individuals to safeguard assets brought into the relationship, including future inheritances. This is a vital feature for those wishing to ensure that personal assets, accumulated prior to the relationship, remain protected in the event of a breakdown.

Another key advantage of BFAs is their cost-effectiveness. By outlining asset division terms in advance, BFAs can save significant legal costs and time that would otherwise be spent in court. However, drafting a BFA can be complex and expensive, requiring specialized legal expertise and independent legal advice for each party, adding to the overall expenses. Unlike court-ordered settlements, BFAs lack judicial oversight, which can sometimes result in agreements that are unfairly balanced, especially if there is a disparity in negotiating power or financial knowledge between the parties.

Furthermore, courts have the authority to set aside BFAs under certain circumstances, such as fraud, material non-disclosure of assets, duress, or significant changes in circumstances affecting children. This potential for a BFA to be overturned introduces an element of uncertainty, as the agreed-upon terms may not always be upheld in future scenarios.


Binding Financial Agreements (BFAs) stand as a testament to the evolving nature of family law, embodying a structured approach to managing financial matters in relationships. They offer a significant level of certainty and asset protection, enabling individuals to navigate the complexities of financial division with more confidence and clarity. This aspect is particularly crucial in relationships where substantial assets or intricate financial arrangements are involved. BFAs provide a proactive framework for couples to dictate the terms of their financial relationship, potentially averting the need for contentious and expensive legal battles in the event of a relationship breakdown.

However, the decision to enter into a BFA is not one to be taken lightly. It involves navigating a landscape filled with legal intricacies and potential pitfalls. The complexity of these agreements necessitates thorough and comprehensive legal counsel. Individuals considering a BFA must seek advice from experienced legal professionals who can provide tailored guidance that aligns with their specific circumstances and needs. This legal input is invaluable in ensuring that the BFA not only meets the legal requirements set forth in family law but also aligns with the individual's long-term financial and personal goals.

Moreover, as family law continues to adapt to the changing dynamics of relationships and financial matters, the role of BFAs becomes increasingly significant. They highlight the need for careful planning and foresight in managing personal finances, emphasizing the importance of being prepared for various eventualities. A well-drafted BFA can provide peace of mind and a sense of security, knowing that financial matters will be handled as agreed upon, irrespective of how the relationship may evolve over time.

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