A binding financial agreement review is most valuable before there is a dispute. If your relationship, finances or family arrangements have changed since you signed an agreement, a document that once appeared clear may no longer reflect your circumstances or provide the protection you expected.

Binding financial agreements, often called BFAs or prenups, can set out how property, superannuation and financial resources will be dealt with if a relationship ends. They can be made before, during or after a marriage or de facto relationship. They are useful planning tools, but they are not documents to sign once and forget. Their legal effect depends on the wording, the process followed at signing and what has happened since.

For couples in Sydney and across NSW, a timely review can identify problems while there is still room to address them calmly and properly.

Why a binding financial agreement review matters

A BFA is intended to reduce uncertainty. It may protect assets brought into a relationship, address interests in a family business, set out arrangements for an investment property, or give both parties a clearer understanding of what would happen after separation.

However, calling an agreement “binding” does not make it unchallengeable. Under the Family Law Act 1975 (Cth), courts may set aside a financial agreement in particular circumstances. These can include fraud, non-disclosure of a material matter, impracticability, unconscionable conduct, or a significant change in circumstances relating to a child that would cause hardship if the agreement were not set aside.

A review is therefore not simply a proofreading exercise. It considers whether the agreement was made correctly, whether it still fits its intended purpose, and whether changes are needed to reduce future risk.

Situations that should trigger a review

There is no fixed expiry date for a financial agreement. Still, major life and financial events are sensible points to have it checked.

Marriage, separation or reconciliation

An agreement made before marriage should be reviewed before the wedding, particularly if there has been a lengthy engagement or either person’s financial position has changed. The relevant provisions and intended operation of an agreement can differ depending on whether it was made before, during or after a marriage or de facto relationship.

If you have separated, obtain advice before relying on the agreement in negotiations or making decisions about property. If you reconcile after separation, the original document may not deal adequately with the renewed relationship or assets acquired during it.

Children and changing care arrangements

The arrival of a child is one of the most significant reasons to revisit a BFA. An agreement may have been made when both parties expected to work full-time, had no dependants and held relatively separate finances. Years later, one person may have reduced work to provide care, while the other has built substantial assets or income.

A court does not set aside an agreement merely because it now seems unfair. But a material change relating to a child, where enforcing the agreement would cause hardship, is a serious issue requiring careful legal advice. The agreement should also be considered alongside practical arrangements for housing, living costs and future financial security.

Property, business and debt changes

Buying a home, receiving an inheritance, starting a business, becoming a company director or taking on substantial debt can alter the risk profile of an agreement. This is particularly relevant where the agreement refers to a specific property, business interest or asset schedule that is no longer accurate.

For example, a couple may have signed an agreement when one party owned a unit and the other had limited assets. Ten years later, they may own a family home, hold multiple investment properties, have superannuation balances of different values and operate a business together. Broad wording may not provide the certainty either person assumed it would.

Estate planning and superannuation updates

A BFA should not sit apart from your wider planning. Your wills, enduring powers of attorney, superannuation nominations, trusts and business succession arrangements may all need to work together. A review can expose inconsistencies, such as an agreement dealing with a property one party no longer owns or assumptions that no longer match a testamentary plan.

What a lawyer examines during the review

The starting point is the agreement itself, including schedules, annexures, certificates of legal advice and any documents exchanged when it was signed. The review then considers the factual context rather than reading the clauses in isolation.

A lawyer will usually examine whether each party received independent legal advice before signing. The Family Law Act requires advice about the effect of the agreement on that person’s rights and the advantages and disadvantages, at the time the advice was provided. Certificates are relevant, but they are not a complete answer if the circumstances suggest the process was rushed, misunderstood or inadequately documented.

Financial disclosure is another central issue. Parties do not need to predict every future change, but they should not enter an agreement based on misleading information or concealment of material assets, liabilities, income, trusts or business interests. Records of disclosure can become very important if the agreement is later questioned.

The wording also needs close attention. A practical review considers whether the agreement clearly identifies the assets and financial resources it covers, how property is to be divided, whether superannuation is dealt with appropriately, and what happens to property acquired later. It should also be clear about debt, sale costs, tax consequences and the steps required after separation.

Terms may look precise but fail when applied to real events. For instance, a clause requiring an asset to be sold within a fixed period may be unworkable if market conditions are poor, a party cannot refinance, or children need stable accommodation. A good review looks for these practical pressure points before they become a dispute.

Can an existing agreement be changed?

Usually, changing a BFA requires more than an informal written variation or a verbal understanding. Depending on the circumstances, the parties may need to enter into a new financial agreement, or a formal termination agreement followed by a replacement agreement. Each person must receive the required independent legal advice before signing.

This is why trying to “update” a BFA with handwritten notes, an email exchange or a clause copied from the internet can create more uncertainty rather than less. It may leave the original agreement in place, create a dispute about intention, or fail to meet statutory requirements.

Whether replacement is worthwhile depends on the purpose of the agreement and the scale of the change. A minor factual update may be dealt with differently from a complete shift in assets, family responsibilities or business ownership. Advice should be tailored to the agreement and the people who made it.

Timing and process matter as much as the document

The best time to seek advice is well before a deadline, wedding or expected separation. Last-minute agreements can raise concerns about pressure and whether each person had a genuine opportunity to obtain and consider independent advice.

Bring the signed agreement and all related documents to the appointment, along with a current picture of your assets, debts, income, superannuation, trusts, companies and property interests. If there have been major changes, prepare a short timeline. This allows the lawyer to focus quickly on the issues that matter rather than working from incomplete information.

It is also sensible for each party to obtain their own lawyer. A financial agreement affects both people’s legal rights, and one lawyer cannot provide independent advice to both sides. Clear advice at this stage may be less costly and less stressful than trying to resolve a challenge after a relationship has broken down.

Get clear advice before relying on an old agreement

A BFA can provide valuable certainty, but only when it has been prepared carefully and remains suitable for the circumstances it is meant to address. If you are relying on an agreement made years ago, have experienced a major change, or are considering signing a replacement, obtain advice early.

GKE Lawyers can provide practical, plain English advice on the operation and risks of a financial agreement, helping you understand what the document says, what it may not cover and the sensible next step for your circumstances. A careful review now can protect your options when calm decision-making is still possible.