Binding financial agreements have always sat awkwardly in Australian family and estate planning. They promise certainty - sign one, both parties get independent legal advice, and you’re protected from a future Family Court re-write of your asset division. The promise has never quite matched the reality, and the case law through 2024 and 2025 has continued to chip away at the edges.

For practitioners advising on estate planning where a BFA is part of the architecture, the recent decisions are worth taking seriously.

The advice requirement is being read strictly

The independent legal advice requirement under sections 90G and 90UJ has always been the most common ground for setting aside a BFA. What we’ve seen through 2024 and into 2025 is the courts continuing to set a high bar on what counts as advice, and what counts as the advice being communicated in a way that can be evidenced years later.

A pattern is emerging where short, generic certificates from the advising solicitor are being treated with scepticism, particularly where the BFA was signed close to a wedding or under apparent time pressure. Practitioners should be documenting not just that advice was given, but the substance of the advice - the specific risks the client was warned about, the alternatives discussed, and the client’s understanding of the implications.

This has practical estate planning consequences. If a BFA is part of an estate strategy designed to protect inheritances or business interests on relationship breakdown, the supporting file needs to look like the file of a careful family lawyer, not the file of a transactional one.

Material change of circumstances is the live battleground

Section 90K’s set-aside grounds for material change of circumstances have been the subject of several significant decisions through 2025. The courts have continued to draw a line between “things that have changed” - which on its own is not enough - and changes that go to the foundation on which the agreement was made.

The arrival of children remains the cleanest example, but the case law has expanded to consider serious illness, significant inheritance receipts, and structural changes in business interests. Estate planners working on intergenerational wealth strategies should assume that any BFA signed before children arrive carries meaningful risk of being reopened on that ground.

A practical takeaway: BFAs that are revisited and re-executed at meaningful life milestones are significantly more defensible than ones signed once and left to age. Building a periodic review into the planning relationship is becoming standard practice in the careful end of the profession.

Estate dimensions are getting more attention

Where BFAs intersect with estate planning, several recent decisions have considered the interaction with family provision claims. A BFA between spouses doesn’t bind the children of either party for the purposes of a family provision application against the deceased’s estate. This is well-established but increasingly relevant as blended family structures become more common.

The other intersection point is binding death benefit nominations on superannuation. A BFA can speak to non-super assets cleanly, but super sits in a parallel regime governed by trust law and the SIS regulations. Practitioners need to make sure the BFA, the will, and the super nominations all tell a consistent story. Inconsistency is the most common source of dispute we see in the post-death claims.

The ATO’s guidance on superannuation death benefits is worth re-reading periodically because the interaction between death benefits, BFAs and family provision orders has continued to receive attention from both courts and the regulator.

The unconscionability ground

Section 90K(1)(e) - the unconscionability ground - remains hard to invoke successfully but has had a couple of recent runs that are worth noting. The courts continue to look at the relative bargaining positions of the parties, the timing of the agreement, and whether one party was effectively presented with a take-it-or-leave-it situation.

For estate planning purposes, this is most relevant when a BFA is being used in second-marriage scenarios where there’s a significant asset and income disparity between the parties. The risk of an unconscionability challenge years later is genuine. The protective measures - generous time before signing, clear independent advice, and consideration of the weaker party’s reasonable interests - cost very little upfront and reduce the litigation surface significantly.

Practical drafting considerations for 2026

A few things have shifted in the way careful practitioners are drafting BFAs in the current environment.

Recitals matter more than they used to. A clear narrative in the recitals about why the agreement is being entered into, what each party is bringing in, what they’re agreeing to and not agreeing to, and what they understand the consequences to be, gives the agreement a much better chance of surviving scrutiny than a bare-bones document.

Severability provisions are being drafted more carefully. The risk that one provision being struck down takes the rest of the agreement with it has been the source of unfortunate outcomes for clients. Modern drafting separates the operative provisions more cleanly.

Schedules of assets need to be both accurate at the time of signing and contemplated to evolve. Some practitioners are now using updated schedules executed periodically as a way of refreshing the parties’ acknowledgement of the asset position without re-executing the whole agreement.

Where this leaves estate planners

The honest position is that BFAs are still useful, but they’re not the certainty product they were sometimes sold as a decade ago. They work best as part of a broader strategy that includes well-drafted wills, considered super nominations, properly structured family trusts, and regular review.

Where a BFA is the only thing standing between a client’s intended estate distribution and a contested family law outcome, the strategy is fragile. Where it’s one element of a layered approach that anticipates challenge and is designed to be defended, it does its job.

For clients in second marriages, blended families, or holding significant family business interests, the conversation about BFAs in 2026 should start with realistic expectations. The product still has value; the marketing of it needs to catch up with the case law.