We have separated. We have no Binding Financial Agreement (BFA) in place. Should we enter a BFA or seek Court Orders? Can we agree between ourselves?

Can we agree verbally or in writing between ourselves?

We trust each other and don't want to go through the additional paperwork/expense.

Can we sort it out and agree verbally or in writing just between the two of us?

In short, the answer is Yes.

However, doing so runs the real risk of a potential costly + lengthy legal dispute at some point in the future.

This is because whatever is agreed verbally or in writing between a couple (without first obtaining independent legal advice) is not binding or enforceable in Court.

Which is better: A Binding Financial Agreement or Court Orders?

The Binding Financial Agreement (BFA) has to be in writing and each party needs to have sought independent legal advice before signing for it to have any legal effect.

These agreements, which are commonly known as/referred to as a prenuptial agreement, can be challenged on many grounds such as being outdated due to change in the parties’ circumstances.

The Court Orders made are final and binding (other than via the usual Court Appeal process) which makes this the best option for the separated couple to make a "clean break" with as much certainty as possible.

Just & Equitable v. Bad Bargain

Q: If the Binding Financial Agreement (BFA) represents a "Bad Bargain" can it be set aside?

A: No

Court Orders are made in the discretion of the Court such that they are "Just & Equitable".


This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.