Introduction
Q1: We downloaded a binding financial agreement template online, both signed it, and got a lawyer to sign it off. Is that enough?
A: Signing is only the first item on the list. Section 90G also requires that each of you was given independent legal advice before signing, that each of you got a signed statement from your own lawyer saying the advice was given, and that a copy of each statement went to the other side. Miss any of those and the agreement is not binding. Legal basis: Section 90G of the Family Law Act 1975
Q2: My lawyer gave me a certificate saying I received advice. Does that settle the argument?
A: It shifts the argument rather than ending it. Once the certificate is produced, the burden moves to the other side to bring evidence that casts doubt on it. The court asks whether the required advice was given, not whether the advice was any good. Reference: Hoult & Hoult [2013] FamCAFC 109
Q3: My lawyer talked me through the law in general but never compared the deal to what a court might award me. Is the agreement dead?
A: The advice requirement was not met, but that is not the end of it. A court can still declare the agreement binding under section 90G(1A) if it would be unjust and inequitable not to. That is exactly what happened to a wife who signed knowing she was giving up her right to go to court. Reference: Dragomirov [2024] FedCFamC1A 187
What does section 90G actually require for a binding financial agreement?
Section 90G sets out a checklist, and the words if, and only if, do a lot of work. Here is the provision:
(1) Subject to subsection (1A), a financial agreement is binding on the parties to the agreement if, and only if:
(a) the agreement is signed by all parties; and
(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and
(c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
(d) the agreement has not been terminated and has not been set aside by a court.
Unpacked, the provision requires five things to be true at once:
- Both of you signed it. This is the easy one, and it is almost never where agreements fail.
- Each of you got independent legal advice before signing. Independent means your own lawyer, not a lawyer acting for both of you and not your partner's lawyer explaining it to you. The advice has to cover two specific topics: what the agreement does to your rights, and what the good and bad points of signing are for you personally.
- Each of you received a signed statement from your own lawyer confirming that advice was given. This is the document people call the certificate.
- A copy of each statement went to the other side, either to your partner or to their lawyer.
- The agreement has not since been terminated or set aside.
The certificate carries real evidentiary weight rather than being a piece of paperwork to file away. In Hoult & Hoult [2013] FamCAFC 109, the Full Court, which is the appeal bench and usually sits as three judges, worked out who has to prove what when a certificate is challenged.
In my view, the onus of establishing that an agreement is binding falls upon the party asserting that fact because the legislation provides that an agreement is binding "if, and only, if" the prescribed matters are established.
So in a real dispute Hoult works in two steps: the person who wants to rely on the agreement has to prove it is binding, but once they produce the signed certificate the court will draw an inference from it, and the other side then has to bring evidence to displace that inference. Bare assertion that you do not remember getting advice will not do it.
Hoult also settled a point that surprises people. The court is not there to grade your lawyer's advice. It asks whether the advice described in section 90G(1)(b) was given at all. If your lawyer gave you the required advice badly, that is a complaint against your lawyer, not a reason the agreement fails.
One more thing worth knowing if you are in a de facto relationship. The equivalent provision is section 90UJ, and it is worded almost identically. It carries an extra trap in subsection (3): a de facto financial agreement stops being binding if the two of you later marry each other. Couples who sign an agreement while living together and then get married are often surprised to find the document no longer does anything.
Core Point: Section 90G is a checklist, not a standard. A court does not weigh up whether the process was good enough overall. It runs down the list, and a miss on any item means the agreement was never binding.
Why does a defective legal advice certificate matter so much?
Because of section 71A. A binding financial agreement works by shutting the court out of your property pool:
(1) This Part does not apply to:
(a) financial matters to which a financial agreement that is binding on the parties to the agreement applies; or
(b) financial resources to which a financial agreement that is binding on the parties to the agreement applies.
Read that alongside section 90G and the consequence becomes clear. Section 71A only shuts the court out if the agreement is binding. If section 90G was never satisfied, section 71A never switched on, and the court's power under section 79 was there the whole time. De facto couples run through a parallel set of provisions, where section 90SA does the shutting out and section 90SM carries the property power, but the logic is the same.
So a defect that looks like a filing error turns into something much bigger:
- The whole property pool goes back on the table. Not the part you disagree about. All of it, assessed on contributions and future needs as if the agreement had never been written.
- You find out years later. Nobody tests an agreement on the day it is signed. The argument happens at separation, which might be five, ten or twenty years after the defect was baked in, once the asset values have moved a long way.
- You pay twice. You paid for the agreement, and now you pay for the litigation about whether it was ever worth anything, before you even start arguing about the property itself.
The wife had moved to Australia on a spousal visa in 2005. She could hold an everyday conversation in English but not a legal one, and when she enrolled in a TAFE diploma in 2014 she was told her English was not strong enough and stopped.
On 16 September 2014 she signed a financial agreement made under section 90C, which covers agreements made at any point during a marriage, including after separation but before a divorce order. Agreements made after a divorce order fall under section 90D instead. In her case the couple were still together when she signed. The husband's solicitor had drafted it. Under its terms the husband kept the family home and she received $25,000, against a recorded net position of $461,911 for him and $5,667 for her. Ten days later the marriage ended.
Her legal advice came from a solicitor, Ms J, at a meeting the husband arranged, paid for, and sat through from beginning to end. No interpreter was there. The meeting lasted no more than twenty minutes, Ms J's firm had no record of the wife as a client at all, and no file note of the meeting was ever produced.
Outcome: The agreement was not binding. Twenty minutes was not enough to explain to someone with limited English what her rights were, what the agreement did to those rights, and what she stood to gain and lose. The court rejected Ms J's evidence outright. It also refused to declare the agreement binding under section 90G(1A), weighing among other things that she thought she was signing a separation document Australian law required, and that she was never given a copy of what she signed.
I found Ms J not to be a witness of truth.
Key Point: The weak spots are almost always in how the advice was arranged, not in the drafting of the agreement. Who booked the appointment, who paid, who was in the room, how long it took, and whether the lawyer kept a file note.
How do courts apply section 90G in different situations?
Section 90G arguments fall into three groups. The advice was too thin, the paperwork or signing was defective, or the defect exists but the court saves the agreement anyway.
Scenario 1: The advice was given, but it was too thin
Common Misconception: As long as your lawyer sat down and explained the law to you, requirement (b) is met.
Legal Truth: A general explanation of the law is not advice about the effect of this agreement on your rights. Your lawyer has to get specific enough about your situation to let you compare the deal against what a court would likely give you.
It is trite to record that there is no requirement that the terms of a financial agreement be just and equitable
This couple had been together since 1992 and married the year after. By March 2020 the marriage was over, and that May they settled it privately with an agreement made under section 90C. The net pool came to $1,433,083, and the wife's share worked out at roughly $688,883, about $28,000 short of half.
She met her solicitor for the first time on the day she signed. She was given advice in person and a written letter setting out the five-step property process in general terms, she said she had no questions, and she signed. What never happened was any conversation about what each of them had contributed, or about the section 75(2) factors, which at the time were the future needs matters such as age, health, earning capacity and who the children live with. Those considerations moved into section 79(5) in June 2025, so an agreement signed today would be measured against the new numbering, but the substance of what your lawyer has to cover is unchanged. The solicitor accepted in cross-examination that she had not gone through the five-step process.
Outcome: Section 90G(1)(b) was not satisfied. The wife was never told, even roughly, what a court might award her under section 79, so she had no way of measuring the agreement against it. The appeal court held that this went to whether the required advice was given at all, rather than to how good the advice was. The agreement survived regardless, saved under section 90G(1A).
The same failing sank the agreement in Purdey & Millington [2018] FCCA 213, where the meeting was far too short for any of that to happen.
What this means for you in practice:
- Your lawyer should be able to tell you, in numbers, roughly what a court would be likely to award you, and how the agreement compares.
- That conversation needs to happen before you sign, not afterwards.
- If you need an interpreter, use one. A lawyer talking past a language barrier is not giving advice.
- Your partner should not be arranging your appointment, paying for it, or sitting in the room.
- Ask your lawyer to keep a file note. If the agreement is ever challenged, that note is the evidence.
Scenario 2: The paperwork or the signing was defective
Common Misconception: The certificates are a formality and the lawyers will sort them out between themselves.
Legal Truth: The statement has to be signed by the lawyer who actually gave the advice, and a copy has to reach the other side. A lawyer who signs off on something they did not witness or did not advise on can destroy the agreement.
Near enough is not good enough and the Wife does not come to this Court with clean hands.
The parties argued over a pre-marriage financial agreement. The wife owned significant assets and knew the husband had bought a home, but Schedules 1 and 3 of the agreement, which were meant to set out the husband's assets, were left completely blank.
Both solicitors witnessed signatures they had not actually seen being made. The husband's solicitor went by a signature he recognised from earlier work for him, and never advised him on the final form of the incomplete document at all. The wife signed in New Zealand, yet her own solicitor witnessed that signature without being there either. The agreement went straight from her solicitor to her, and she passed it to the husband, bypassing his lawyer entirely.
Outcome: The agreement was not binding, because the husband never received independent legal advice about the effect, advantages and disadvantages of the agreement before signing. The wife then asked the court to declare it binding anyway under section 90G(1A), and the court refused. Relief of that kind is discretionary, and she and her solicitor knew the husband's asset schedules were blank and pushed the signing through regardless.
A related problem shows up when the two of you do not sign the same document. In Fevia & Carmel-Fevia [2009] FamCA 816, the wife signed a pre-marriage agreement with no asset disclosure annexure attached, while the husband's copy had one. No copy of the husband's signed version ever reached her, and she did not see it for years. The court held there was no valid contract at all, because the two of them were never agreeing to the same thing. Section 90G did not even arise, and she was free to apply for property orders.
A word of warning about older cases you may find online. Several well-known decisions, including Wallace & Stelzer & Anor [2013] FamCAFC 199, Bilal & Omar [2015] FamCAFC 30 and Senior & Anderson [2011] FamCA 802, turned on transitional rules that applied to agreements signed before the 2010 amendments. Under some of those transitional paths, the certificate exchange requirements did not have to be met at all. Do not read across from them. For an agreement signed today, paragraphs (c) and (ca) apply in full.
Scenario 3: The defect is real, but the court may still save the agreement
Common Misconception: Once you prove the advice requirement was not met, the agreement is finished.
Legal Truth: Section 90G(1A) lets a court declare a defective agreement binding. It applies where the agreement was signed, one or more of paragraphs (1)(b), (c) and (ca) were not satisfied, and the court is satisfied it would be unjust and inequitable if the agreement were not binding.
The provisions of sections 90G(1A), (1B) and (1C) of the Act are "remedial" or "beneficial".
Parker matters because it set the interpretive dial. Those subsections are remedial legislation and get a generous reading, so that technical failures do not automatically wipe out agreements the parties genuinely intended to make. Parker itself concerned a 2004 agreement and ran through the transitional version of the provision, but that approach to reading the saving power has carried through. The appeal court applied it again in Dragomirov in 2024.
The wife signed the financial agreement on 5 November 2004. Her own solicitor had told her the deal was unfair and advised her not to sign, and she signed anyway.
The agreement was then changed, and an amended version was executed a week later on 12 November 2004. Her solicitor never advised her directly on those changes, which is where the section 90G problem came from. She raised no challenge for more than three years. In February 2008 she filed an application asking that the agreement be set aside, and in March 2009 she filed the amended application the trial ran on. She never said she had misunderstood the agreement or what it did.
Outcome: The trial judge had refused to save the agreement, reading the discretion narrowly because the amendments had not been advised on. The Full Court allowed the appeal by majority, with one judge dissenting, and sent the case back for rehearing. Note what that does and does not mean. The Full Court did not declare the agreement binding. It held that the trial judge had applied too narrow a test, and that letting an agreement fall in these circumstances was the sort of outcome the saving provision was enacted to prevent. Whether the agreement should actually be declared binding was left to the rehearing. The court also held that a party who relies on an agreement as a defence to a property application is in substance seeking to enforce it, which is what section 90G(1B) requires.
Two things are worth pinning down about how this discretion works.
First, from Hoult: whether the bargain is financially fair has nothing to do with it. The court is looking at the circumstances in which the agreement was made and performed, and how the parties have behaved since. A one-sided deal is not a reason to refuse relief, and a generous one is not a reason to grant it.
Second, this is a discretion, so your own conduct is in issue. In Pagani the court went further and applied the equitable clean hands doctrine directly. Compare the two cases that pull in opposite directions:
| Comparison | Dragomirov [2024] | Pagani [2023] |
|---|---|---|
| Nature of the defect | Solicitor gave an outline of the law but never compared the deal with a section 79 entitlement | Asset schedules left blank, signature falsely witnessed, husband never advised on the final document |
| What the party actually knew when signing | She knew she was giving up the court process and chose the bargain anyway | He was never told what he was giving up |
| Conduct of the party seeking relief | Nothing held against her | She knew the schedules were blank, bypassed his solicitor and rushed the signing |
| Outcome | Declared binding under section 90G(1A) | Relief refused, agreement not binding |
Key: The deciding factor is not how serious the paperwork failure was. It is what the person signing understood at the time, and whether the person now asking the court for help had a hand in creating the defect.
If you are trying to hold an agreement together, this points at three things:
- Gather everything that shows what the other side actually understood when they signed. Emails, drafts, notes of meetings.
- Be straight about how the agreement was put together. Trying to paper over a defect you helped create is what cost the wife in Pagani.
- Do not build your argument around how fair the split is. Under Hoult, that is not the question.
Section 90G is only one route. If your agreement cleared these hurdles and is binding, the argument moves to whether a court should undo it, which is a different provision with a different list of grounds. We cover that in When Can a Financial Agreement Be Set Aside in Australia?. Two grounds get their own treatment: unconscionable conduct at the time of signing in Can a Binding Financial Agreement Be Overturned in Australia?, and what happens when the assets covered by the agreement collapse in value in Can Asset Depreciation Overturn a BFA in Australia?.
What should you do if you think your agreement might not be binding?
Four lessons sit underneath the cases above.
- Advice that never priced your alternative is not advice. Dragomirov shows that a general outline of the law fails section 90G(1)(b). Your lawyer has to tell you what a court might award you, so you can see what the agreement costs you.
- How the meeting was set up decides these cases. Purdey & Millington turned on who booked the solicitor, who paid, who sat in the room, how long it ran, and whether anyone kept a file note.
- Equity will not rescue you from a mess you helped make. Pagani shows that section 90G(1A) is discretionary. The wife lost it because she and her solicitor pushed through a signing they knew was defective.
- A defect is not the end of the agreement. Parker shows the saving provision gets a generous reading. Do not assume an agreement is worthless just because you found a flaw in it.
Then start with the paperwork, because the answer is usually sitting in it.
- Find the certificates. You should have a statement signed by your own lawyer, and there should be evidence that a copy went to the other side. If either is missing, you have a paragraph (c) or (ca) problem.
- Work out what you were actually told. Did anyone tell you what a court would likely award you, and how the agreement compared? If not, you may have a paragraph (b) problem, which is what sank the agreement in Dragomirov.
- Ask your old lawyer for the file. File notes, attendance records and the retainer decide these cases. In Purdey & Millington the absence of any file note was decisive.
- Check the dates. Advice has to come before signing. An agreement signed in a rush, days before a wedding or a flight, is worth a close look.
- If you are de facto, check whether you later married. Under section 90UJ(3), marrying each other ends a de facto financial agreement.
- Get advice before you act on it. An agreement you think is worthless might still be declared binding under section 90G(1A), and walking away from it on your own reading is a risk.
Do：
- Ask your lawyer what a court would likely award you, in numbers, before you sign
- Choose and pay for your own solicitor
- Use an interpreter if English is not your first language
- Ask your lawyer to keep a file note and give you a copy of everything
- Check that each statement of advice was actually exchanged with the other side
- Get advice before you act on a defect you have spotted
Don't：
- Accept a general explanation of the law and treat it as advice about your agreement
- Let your partner book the appointment, pay the fee, or sit in the room
- Sign anything you were not given time to read or have translated
- Leave the signing without a copy of the agreement and the statement of advice
- Assume the lawyers handled the certificates between themselves
- Treat the agreement as void on your own reading and start spending accordingly
