A Binding Financial Agreement or BFA for second marriages in Australia allows each spouse to quarantine pre-existing assets and ensure children from prior relationships receive their intended inheritance if the new marriage ends.
A BFA for second marriages in Australia is one of the most practically important uses of the instrument. When one or both parties enter a new marriage with children from a previous relationship, an existing family home, superannuation built over decades, or a business they want to pass to their children, a BFA sets out in advance exactly how those assets are treated, giving both spouses clarity and protecting the inheritance intended for children from prior relationships.
In a first marriage, both parties often build their assets together. In a second marriage, each party typically brings existing wealth into the relationship: property, superannuation, investments, or business interests built during a prior relationship or through years of post-separation rebuilding.
Without a BFA, all of these pre-existing assets can become part of the asset pool in a future separation claim. A non-financial contribution (even something as informal as homemaking, supporting the other party through a difficult period, or being a stepparent to children) can create a claim over assets the other party considers entirely their own.
This is the most common motivation for BFA in second marriages. If you have an adult or teenage child who expects to inherit your home or a share of your estate, a new spouse has the potential to dilute or displace that inheritance, through a property claim on separation, or through a family provision claim on your estate after your death.
A BFA can quarantine specified assets from the new relationship, ensuring they are treated as non-relationship property that reverts to you (and ultimately your children) if the marriage ends. Combined with an updated Will and testamentary trust, it provides comprehensive protection.
• Pre-existing assets: Specify each party’s assets at the time of marriage and confirm they are not part of any future property pool.
• Post-relationship growth: Decide how growth in the value of pre-existing assets during the marriage will be treated.
• Joint acquisitions: Anything purchased together during the marriage (a new home, a joint investment) can be treated differently from pre-existing assets.
• Superannuation: Superannuation accumulated before the marriage can be excluded, or the agreement can specify how it will be treated.
• Estate interaction: Note that a BFA does not operate as a Will; separate estate planning is required to give full effect to inheritance intentions.
The hardest part of a second-marriage BFA usually isn’t the law, it’s the conversation. Raised badly, it can feel like an accusation. Raised well, it’s simply part of planning a blended family’s future, alongside the Will, the super nominations, and the mortgage.
Timing matters enormously. Bring it up early. Ideally when you first start discussing marriage or moving in together, and well before any wedding planning. That gives both of you time to think, take advice, and negotiate without pressure. An agreement signed under time pressure is both harder on the relationship and easier to challenge later.
Frame it around what it protects for both sides. Your partner likely has their own assets, their own children, and their own wish for certainty. A well-drafted BFA is mutual: it protects each party’s pre-existing position and gives you both a clear, agreed picture of what’s shared and what isn’t.
Imagine you own your home outright, have adult children from a first marriage, and are marrying a partner who has their own unit and superannuation. Your BFA records that each party’s pre-existing property stays theirs, and that anything you buy together is shared. Your updated Will then leaves your home to your children, with appropriate provision for your new spouse.
If the marriage ends in separation, the BFA keeps your home out of the property pool. If you die during the marriage, the Will directs the home to your children. Neither document alone covers both events: together, they close the loop. Add an updated superannuation death benefit nomination and the picture is complete.
Every family’s numbers and needs are different, and a new spouse retains certain rights that need careful handling in the estate planning. This is general information, not legal advice.
A few patterns come up again and again when second-marriage agreements go wrong. And most of them are preventable.
• Leaving it too late. Signing close to the wedding invites challenges based on pressure, and rushed disclosure is often incomplete disclosure.
• Forgetting the estate side. A BFA governs separation, not death. Without an updated Will, your children’s inheritance is still exposed.
• Ignoring how assets change. If the plan is to sell your pre-existing home and buy together, the agreement needs to say what happens to those sale proceeds. Otherwise the quarantining can unravel in practice.
• Skipping updates. A BFA drafted before major changes (a business sale, an inheritance, a new child) may no longer reflect what either of you intends.
• Treating the lawyer’s advice as a formality. The independent advice requirement exists to protect the agreement itself. Rushed or token advice is a classic ground of attack.
A second-marriage BFA is a long-term document. It deserves the same care you’d give the assets it protects
There is no legal requirement, but a BFA is strongly recommended where either party has significant pre-existing assets, children from a prior relationship, or a business they want to protect. Without one, pre-existing assets can become subject to a property claim in a future separation.
Yes. A BFA can quarantine pre-existing assets and specify that they will not form part of any future property pool. Combined with a testamentary trust in your Will, it provides layered protection for children’s expected inheritance.
A BFA addresses property division if the relationship ends during the parties’ lifetimes. It does not operate as a Will. To protect children’s inheritance on death, you also need a Will, and potentially a testamentary trust, that clearly addresses how your assets pass.
Broadly yes. But courts can still set aside a BFA for fraud, duress, technical failure, or hardship affecting a child. A properly executed BFA with genuine independent legal advice and complete financial disclosure is highly resistant to challenge.
Both parties must enter the BFA voluntarily, with independent legal advice. The new spouse must sign freely. A BFA presented as a condition of the marriage (especially at the last minute) carries a higher risk of being challenged for duress.
AussieLegal’s BFA Plus is designed for the complexities of second-marriage asset structures. Fixed fee, both parties covered, fully compliant with Section 90C of the Family Law Act. Call 1300 728 200 to discuss your situation.
A BFA combined with an updated Will gives comprehensive protection: the BFA governs what happens if the relationship ends during your lifetimes, and the Will governs what happens to your estate when you die. Both are needed. Neither substitutes for the other.
The conversation about a BFA before a second marriage isn’t about distrust. It’s about acknowledging that blended family finances are complex, that children from prior relationships have legitimate expectations, and that clarity on these things is an act of care rather than suspicion.
AussieLegal’s BFA Plus is designed for complex asset structures and blended families.
