Can a BFA be overturned in Australia? Yes — but a properly executed agreement is far harder to challenge than most people expect. Section 90K of the Family Law Act sets out the specific grounds on which a court can set aside a Binding Financial Agreement. Understanding them tells you both how a BFA can be attacked and, more importantly, how to prevent that from happening at the drafting stage.
Under Section 90K of the Family Law Act 1975, an Australian court can set aside a Binding Financial Agreement on five grounds: fraud, duress, unconscionability, significant change in circumstances affecting a child, and failure to comply with the technical requirements of the Act.
A BFA can be set aside if it was obtained through fraud — including non-disclosure of a material asset or liability. Both parties have an obligation of full and frank financial disclosure before signing. If one party conceals a bank account, a cryptocurrency holding, a business interest, or a significant debt, and that information would have materially affected the terms of the agreement, the court can set the BFA aside.
The concealment does not need to be deliberate fraud — even inadvertent material non-disclosure can be grounds for setting aside.
Courts can set aside a BFA signed under duress — typically where one party was pressured, threatened, or emotionally manipulated into signing. The classic scenario is a BFA presented to a partner hours before a wedding with an ultimatum: sign or the wedding is cancelled.
Unconscionable conduct is a broader ground: it covers situations where one party took advantage of the other’s vulnerability, emotional state, or lack of understanding — even without explicit threats.
This is the most mechanical ground. A BFA that does not comply with the strict formal requirements of the Family Law Act is not legally binding. The most common technical failures are missing Section 90G certificates — the signed statements from each party’s lawyer confirming that independent legal advice was given.
Even a single missing certificate can render the entire agreement unenforceable, regardless of how clear and fair the terms are.
If circumstances change significantly — particularly circumstances that affect the care of a child — a court can set aside a BFA where maintaining it would cause hardship to the party who cares for the child.
This ground is narrow and does not apply to general changes in circumstance. It specifically requires hardship arising in connection with a child of the relationship.
A BFA is also a contract and can be challenged on any ground available under general Australian contract law — including misrepresentation, mistake, or illegality. These grounds are less commonly used but available where the specific grounds under Section 90K do not apply.
Setting aside a BFA doesn’t mean the court rewrites it into something fairer. The agreement simply stops operating — and the parties’ property matters fall back into the ordinary family law framework, where the court applies the standard four-step property settlement process as if the agreement had never existed.
That’s often a dramatically different outcome from what the BFA provided. Assets one party thought were quarantined go back into the pool. Contributions and future needs get weighed afresh. And by the time a set-aside application has run its course, both parties have usually spent significant amounts on legal costs fighting about the agreement before they even start arguing about the property itself.
This is why the stakes of getting a BFA right at the drafting stage are so high. The downside isn’t just losing the agreement — it’s inheriting a full property dispute on top of it.
Most successful challenges exploit a weakness that existed on day one. The good news is that those weaknesses are avoidable with some discipline at the start.
Allow real time. An agreement signed weeks or months before a wedding looks considered; one signed the night before looks like pressure.
Disclose everything — every account, every asset, every debt. If in doubt, include it. Material non-disclosure is one of the most common grounds for attack.
Make sure both parties get genuinely independent legal advice from separate lawyers, and that the certificates are properly signed and kept with the agreement.
Keep the terms within the bounds of reason. An agreement that leaves one party with nothing invites arguments about unconscionability.
Store the original safely, along with the disclosure documents and advice certificates, so you can prove compliance years later.
A BFA is one of the few legal documents where the process matters as much as the words. Cutting corners on the process undermines everything the words are trying to achieve.
Consider a common scenario. One partner presents a BFA a few days before the wedding, with the invitations sent and family flying in. The other partner signs after a rushed meeting with a lawyer arranged by their fiancé. Years later the relationship ends, and the disadvantaged party challenges the agreement on the basis of duress and undue influence.
Courts have looked hard at exactly this pattern. The timing, the pressure of an imminent wedding, the imbalance in bargaining power, and the quality of the legal advice all come under scrutiny. The lesson isn’t that pre-wedding BFAs are impossible — it’s that the circumstances of signing are evidence, and they’re being created whether you think about them or not.
If you’re planning a BFA before a marriage, start the conversation months out, not days. This is general information, not legal advice.
Yes. Under Section 90K of the Family Law Act, a court can set aside a BFA for fraud or non-disclosure, duress or unconscionable conduct, technical non-compliance with formal requirements, a significant change in circumstances affecting a child, or grounds available under general contract law.
Most successfully challenged BFAs were technically deficient — missing legal advice certificates or failing to comply with formal requirements. BFAs drafted with proper independent legal advice and complete financial disclosure are significantly harder to overturn.
Not automatically. A change in financial circumstances alone does not invalidate a BFA. The only change-of-circumstances ground is specific: a significant change affecting a child of the relationship that would cause hardship to the caring parent.
Yes. Duress, undue influence, and unconscionable conduct are all grounds for setting aside. If you were pressured into signing — particularly close to a wedding or during a period of emotional vulnerability — the agreement may be challengeable. Seek legal advice promptly.
If a BFA is set aside, both parties revert to their general rights under the Family Law Act. Either party can apply for a court-ordered property settlement, which proceeds on the standard just and equitable basis as if the BFA never existed.
AussieLegal’s BFA Plus meets every Section 90G requirement — independent legal advice for both parties, signed certificates, and a proper disclosure process.
Call 1300 728 200 to ensure your agreement is built to last.
The grounds in Section 90K are specific and the threshold is real. Courts don’t set aside BFAs because one party later regrets the terms. The protection comes from doing it correctly the first time.
A properly executed BFA — with genuine independent legal advice, complete financial disclosure, signed certificates, and no duress — is genuinely difficult to challenge. Most BFAs that are set aside had something wrong from the start: a missing certificate, inadequate disclosure, or pressure to sign quickly.
A solicitor-vetted BFA is far more resistant to challenge. AussieLegal’s BFA Plus includes mandatory independent legal advice for both parties.
