Legal Project Management Plan & Checklist
Purpose of this Guide: Use this plan whenever a couple - whether about to marry, already married, living together in a de facto relationship, or separated - wants a legally binding private contract that settles how their property will be divided, without going to court. A Binding Financial Agreement (BFA, sometimes called a prenup or financial agreement) lets the parties decide the outcome themselves. Once properly executed, it removes the court's power to override that agreement and make different property orders. Open this plan at the first meeting where a client asks to protect assets, formalise financial arrangements with a partner, or lock in a separation settlement without litigation.
Jurisdiction: Federal - governed by the Family Law Act 1975 (Cth) and administered by private legal practitioners. BFAs are not filed with any court or tribunal. Forks cover three timing scenarios: pre-nuptial and pre-cohabitation agreements (highest Thorne v Kennedy risk), agreements made during a relationship, and post-separation or post-divorce agreements.
The Process at a Glance: Conduct a conflict check and identify the precise type of agreement needed based on the chronological status of the relationship. Exchange full financial disclosure between both parties, including property valuations, superannuation balances, bank statements, and corporate or trust documents. If superannuation is being split, serve the draft splitting clauses on the fund trustee and allow 28 days for trustee review before executing. Draft the BFA deed, financial schedules, and Certificates of Independent Legal Advice. Deliver a written letter of advice to each client in a private conference, documenting the advantages and disadvantages of the agreement. Execute the deed with wet-ink or electronic signatures witnessed by an independent adult. Exchange signed counterparts and Practitioner Certificates between solicitors. Store the original in safe custody and serve a copy on the superannuation fund to implement any splitting arrangements.
Use this fork when the parties have already separated or divorced and now want to formalise their financial settlement as a Binding Financial Agreement instead of going through the court's consent orders process. This can happen years or even decades after a separation or divorce - there is no time limit on entering into a BFA. However, there is a critical trap: if the BFA is later set aside by a court, strict litigation limitation periods immediately apply to file for contested property orders. This fork highlights that limitation trap and ensures clients receive specific advice about the consequences if the agreement unravels.
Use this fork when a client wants a financial agreement in place before a marriage ceremony or before moving in together as a de facto couple. These agreements - commonly called prenups - are entirely legal and enforceable in Australia, but they carry the highest risk of being set aside by a court if proper safeguards are not followed. The main dangers are pressure or ultimatums close to the wedding date, insufficient time for the other party to obtain independent advice, and a significant power imbalance between the parties. This fork layers additional protective steps on top of the main plan to manage those risks.
Use this fork when the parties are currently in an ongoing marriage or de facto relationship and want to put a financial agreement in place now - whether to define entitlements during the relationship, protect a new inheritance or business acquisition, or settle financial matters on an informal separation without going to court. The critical risk with agreements made during an existing relationship is that if a Divorce Order is made and takes effect before the agreement is fully signed, the deed can no longer be made under section 90C and must be re-drafted under section 90D. This fork adds a specific monitoring task to watch for that jurisdiction shift.
Key Legislation and Case Law: Family Law Act 1975 (Cth) - Part VIIIA (marriages): s 90B (pre-marriage), s 90C (during marriage), s 90D (post-divorce), s 90G(1) (binding requirements including independent legal advice), s 90G(1)(ca) (exchange of signed certificates), s 90K(1) (grounds to set aside - fraud, non-disclosure, unconscionability, impracticability), s 90DA (Separation Declaration for super splitting); Part VIIIAB (de facto): s 90UB (pre-relationship), s 90UC (during relationship), s 90UD (post-breakdown), s 90UJ(1) (binding requirements), s 90UM(1) (grounds to set aside), s 90UF (Separation Declaration); Superannuation: s 90MI and s 90MHA (BFA as Superannuation Agreement), s 90MZB (28-day trustee notice - mandatory procedural fairness); Ouster of jurisdiction: s 71A (marriages) and s 90SA (de facto). Family Law (Superannuation) Regulations 2025 (Cth) - Form 6 Declaration. Electronic Transactions Act 1999 (Cth) - permits electronic execution. Key cases: [Thorne v Kennedy [2017] HCA 49](https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2017/49.html) - pre-nuptial agreement set aside for undue influence and unconscionability; 42-day minimum buffer rule; Hoult & Hoult [2013] FamCAFC 109 (a certificate of independent legal advice is prima facie evidence that the s 90G advice was given, and the party attacking the agreement must then call evidence that throws doubt on it); Black & Black [2008] FamCAFC 7 - a financial agreement must strictly comply with s 90G to be binding; Sullivan & Sullivan [2011] FamCA 752 - a document expressed as a s 90B agreement but signed by one party after the wedding was not an agreement under either s 90B or s 90C. Limitation: no limitation period applies to entering a BFA itself; if a BFA is set aside by court, litigation limitation periods apply immediately - 12 months from divorce absolute (s 44(3)) or 2 years from de facto separation (s 44(5)).
* Disclaimer: We're nobody's lawyer, because we aren't lawyers. You are, so you know better than to take legal advice from an app. We also aren't accountants or dog trainers - just digital spirit guides taking zero liability for any of this. This site exists to gather the collective knowledge of practitioners like you. Verify everything and submit your feedback on the Binding Financial Agreement - Drafting and Execution matter plan to improve the playbook. THIS IS NOT LEGAL ADVICE, it's a request for input.
This legal matter plan provides a structured workflow for Family Law cases, outlining the standard Transactional Drafting process. Utilize these tracking templates to manage your legal cases efficiently.
| Field | Token | Type | Required | Defined in |
|---|---|---|---|---|
| Matter(4) | ||||
| Matter numberⓘ | matter.matterNumber | text | Required | inheritedmatter-core |
| Matter title | matter.title | text | - | inheritedmatter-core |
| Matter typeⓘ | matter.matterType | text | - | inheritedmatter-core |
| Matter status | matter.status | text | - | inheritedmatter-core |
| Client(1) | ||||
| Client name | matter.clientName | text | Required | inheritedmatter-core |
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