Western Australia operates its own unique legislative framework for de facto financial agreements. While the rest of Australia falls under the Family Law Act 1975 (Cth) following the 2009 referral of powers, WA retained state jurisdiction over de facto matters through the Family Court Act 1997 (WA). Part 5A Division 4 of the Act governs binding financial agreements for de facto couples, creating a framework that mirrors the Commonwealth provisions but contains important state-specific differences.
For practitioners advising de facto couples in Western Australia, understanding these differences is critical. The most common errors leading to agreements being set aside relate to inadequate independent legal advice, insufficient financial disclosure, and failure to properly identify which legislative regime applies - particularly for couples who may have lived in multiple jurisdictions during their relationship.
This article supplements our WA de facto binding financial agreement practitioner checklist. For the complete step-by-step workflow covering drafting, independent legal advice certification, and execution, see the full matter plan.
Three Types of De Facto Financial Agreement
The Family Court Act 1997 (WA) provides for three distinct types of binding financial agreement, each corresponding to a different stage of the de facto relationship. Section 205ZN covers pre-relationship agreements (entered before cohabitation), section 205ZO covers during-relationship agreements, and section 205ZP covers post-separation agreements. Each type has specific statutory requirements and its own set of risks.
The distinction between these agreement types is not merely academic. A pre-relationship agreement under section 205ZN carries particular proximity-to-cohabitation risks - if the agreement is executed too close to the commencement of cohabitation, it may be vulnerable to challenge on the basis that one party was under emotional or practical pressure. Our pre-relationship agreement fork addresses these timing risks in detail.
Independent Legal Advice Requirements
Under the Family Court Act 1997 (WA), each party to a binding financial agreement must receive independent legal advice about the effect of the agreement on their rights and the advantages and disadvantages of entering into it. The legal practitioner providing advice must sign a certificate stating that the advice was provided. This is not a formality - failure to properly certify independent legal advice is one of the most common grounds for setting aside a BFA.
Practitioners should note that "independent" means genuinely independent. The same firm cannot advise both parties, and in practice, the advising solicitor should have no prior relationship with the other party or their solicitor that could create a perception of conflict. The WA de facto binding financial agreement checklist includes specific compliance tasks for the independent legal advice certification process.
Full and Frank Disclosure
While the statutory provisions do not expressly require financial disclosure in the same way as property settlement proceedings, the practical reality is that a BFA executed without full disclosure is vulnerable to being set aside under section 205ZS on the basis of fraud (including non-disclosure of material matters). Best practice requires each party to provide a comprehensive asset and liability schedule annexed to the agreement.
For practitioners handling a de facto property settlement as an alternative to a BFA, the disclosure obligations are even more explicit. See our WA de facto property settlement checklist for the full disclosure workflow under the property settlement pathway.
Setting Aside a Binding Financial Agreement
Section 205ZS of the Family Court Act 1997 (WA) sets out the grounds for setting aside a binding financial agreement. These include fraud, undue influence, unconscionability, failure to comply with the formal requirements (including independent legal advice), and material change in circumstances relating to the care and welfare of a child. The threshold for setting aside is significant but not insurmountable, and practitioners drafting BFAs should anticipate and mitigate each potential ground.
Post-Separation Agreements and Limitation Traps
Post-separation agreements under section 205ZP carry a particular limitation trap. De facto couples in Western Australia must commence property settlement proceedings within two years of the end of the de facto relationship (or obtain leave of the court to proceed out of time). If a BFA is being negotiated post-separation, practitioners must be alert to this limitation period and consider whether protective proceedings should be filed to preserve the client's position. The post-separation agreement fork addresses Evans & Goodwin compliance and limitation awareness in detail.
Using the Matter Plan
Drafting and executing a binding financial agreement for de facto couples in Western Australia requires careful attention to jurisdictional issues, formal requirements, and setting-aside risks. Our WA de facto binding financial agreement checklist provides the complete practitioner workflow covering client intake, jurisdictional analysis, drafting, independent legal advice certification, execution, and post-execution matters. For agreements at specific relationship stages, see the dedicated forks for pre-relationship, during relationship, and post-separation scenarios.