What Is Financial Disclosure And Why Can It Make Or Break Your BFA?

Financial disclosure means giving your partner a complete and honest picture of what you own, owe, earn and control before either of you signs a binding financial agreement.

It covers property, savings, superannuation, business interests, trusts, debts and any material interest you expect to receive.

The Family Law Act does not prescribe a disclosure form for a BFA, but a court can set an agreement aside where it was obtained by fraud, and non-disclosure of a material matter counts as fraud.

That last point is the one most people miss. An agreement can be drafted properly, advised on properly and signed properly, and still be attacked a decade later if a material account, loan or company was never mentioned.

What Do You Have to Disclose Before Signing a BFA?

Comprehensive disclosure is strongly advisable, meaning setting out what you own or control, what you owe, what you earn, and any material interests you expect to receive, because your partner and their lawyer cannot assess the agreement without it.

The safest way to think about disclosure is to ask what a court would want to see if your relationship ended tomorrow and the two of you were fighting over property. That is the same information the other side’s lawyer needs now, before anyone signs.

The Act does not impose a standalone disclosure code on a couple negotiating a BFA, so this is about reducing the risk of a challenge rather than complying with a checklist.

Leaving something out because it feels private, or because you think it is not part of the deal, can significantly weaken an otherwise well-drafted agreement.

The items usually worth listing are:

• Real estate you own alone, jointly, or through an entity, with current values and mortgage balances
• Bank accounts, term deposits, shares, managed funds and cryptocurrency holdings
• Superannuation, including every fund, account balance and any self managed fund
• Interests in companies, partnerships, trusts and family businesses, with recent financial statements
• Personal loans, credit cards, tax debts, guarantees and study loans
• Income from all sources, including salary, dividends, distributions and rent
• Vehicles, jewellery, art and other personal property of real value
• Material expected or contingent interests, such as an inheritance, a settlement, a bonus or an equity vesting event

That list looks long, and for most couples it is shorter in practice than it appears. A couple with a home, two superannuation accounts and a car has a straightforward set of documents to gather.

The work grows where there is a business, a trust or a self managed fund in the picture, because those structures can require substantially more detailed disclosure and valuation work.

Do You Have to Disclose Assets You Owned Before the Relationship?

Yes, you should disclose assets you brought into the relationship, even where the whole point of the agreement is to keep those assets out of any future division.

The agreement usually works by identifying what belongs to whom and then setting out how it stays that way.

An agreement can deal with categories of property rather than listing every item individually, but an asset that is never identified is harder to show was known about, and your partner can later say they had no idea it existed when they gave up their rights over it.

A pre-relationship property, an inheritance received before you met, or shares acquired years earlier should generally be included where they are relevant to the agreement.

Disclosure does not itself change who owns what. Material non-disclosure can create a serious risk that the agreement is set aside later.

Does the Family Law Act Require Disclosure Before You Sign?

The Act does not set out a disclosure checklist for financial agreements, but it does make the consequences of material non-disclosure clear, and separate reforms have codified the disclosure duty that applies once a matter reaches court.

Section 90G of the Family Law Act 1975 sets out the requirements for an agreement to be binding, which include signing by all parties, independent legal advice for each spouse party, the signed statements of advice, and the exchange of those statements.

Section 90G(1)(d) also requires that “the agreement has not been terminated and has not been set aside by a court”, and section 90G(1A) gives a court a limited pathway to declare an otherwise defective agreement binding where it would be “unjust and inequitable” for it not to be.

Disclosure sits underneath all of that rather than in a section of its own. From 10 June 2025, the duty of disclosure in court matters was codified in the legislation itself, while remaining in the court rules as well.

The Federal Circuit and Family Court confirms that the amending Act “codifies the duty of disclosure in financial or property proceedings, and places it in the Act in sections 71B (for parties to a marriage) and 90RI (for parties to a de facto relationship)“, while noting that the duty was “also retained in the Rules”.

The Attorney-General’s Department describes the practical effect as a duty on separating couples to “give all relevant financial information and documents to each other and the court”.

Those provisions do not apply merely because a couple is privately negotiating a BFA, although they can apply where separated parties are preparing to start financial or property proceedings.

The message they send is still worth reading closely. Parliament has treated financial transparency as important enough to write into the Act, and a court asked years later to look at how your agreement was made will be working in that environment.

Why Can Non-Disclosure Destroy a Binding Financial Agreement?

Non-disclosure can destroy a BFA because it is one of the express grounds on which a court may set the agreement aside, and it is treated as a form of fraud.

Section 90K(1)(a) allows a court to set aside a financial agreement where “the agreement was obtained by fraud (including non-disclosure of a material matter)”. The same wording appears in section 90UM(1)(a) for agreements made by de facto couples.

Section 90KA adds a second layer, because the validity and enforceability of a financial agreement is decided “according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts”.

Depending on the facts, that can open the door to ordinary contract arguments such as misrepresentation, which is what a deliberately understated asset schedule may look like.

A material undisclosed asset or liability can therefore give the other party a basis to apply to set aside the agreement, including the parts that had nothing to do with the asset in question.

What Counts as a Material Matter?

The Act does not set a dollar threshold and does not exhaustively define what makes an omitted matter material, so materiality is decided on the facts of each case.

In practice, it tends to turn on how significant the information was to the agreement, and to the circumstances in which the other party accepted its terms.

A forgotten $3,000 savings account in a pool worth several million may be less likely to be material, depending on the circumstances.

An undisclosed investment property, a second superannuation fund, a shareholding in a growing company, or a large loan owed to a family member is a very different proposition.

Two considerations come up often when materiality is argued, although neither is a statutory test.

The first is size relative to the whole pool, and the second is what the agreement gave up.

Where one partner signed away any claim over business assets, the value and structure of that business is central, and an understatement there is far more damaging than the same error in an asset nobody was trading away.

How Does Poor Disclosure Weaken the Legal Advice Behind Your Agreement?

Poor disclosure weakens the advice requirement because a lawyer cannot properly advise on the advantages and disadvantages of an agreement without knowing what their client is giving up.

Section 90G(1)(b) requires that before signing, “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”.

Advantages and disadvantages are measured against something. Materially inaccurate figures make it harder for a lawyer to assess the practical advantages and disadvantages of the proposed agreement, and may contribute to a later challenge, depending on the circumstances.

This is why disclosure and independent advice are best treated as one process rather than two. The information goes across first, both lawyers work from the same numbers, and the advice is given on a foundation that can be shown to a court years later.

What Does Thorne v Kennedy Tell You About How Courts Look at BFAs?

Thorne v Kennedy [2017] HCA 49 shows that courts examine the whole circumstances in which an agreement was made, not just whether the paperwork was completed correctly. In that case, the High Court set aside both a pre-nuptial and a post-nuptial agreement.

The High Court’s summary of the decision records that Mr Kennedy was “an Australian property developer with assets worth over $18 million”, that Ms Thorne was told before signing that “if she did not sign it then the wedding would not go ahead”, and that her independent solicitor advised her the agreement was drawn solely to protect Mr Kennedy’s interests.

The agreements were held to be void for unconscionable conduct, with a majority also finding them voidable for undue influence. Disclosure was not the ground that decided the case, and it is worth being accurate about that.

What the decision illustrates is how closely a court will look at the imbalance between the parties, the pressure surrounding the signing and the quality of what the weaker party actually understood.

Financial information can form part of that picture, because a party who was never told what was in the pool is less able to weigh what they were surrendering, although the case did not decide a disclosure rule.

How Does Disclosure for a BFA Differ From Disclosure in Court?

Disclosure for a BFA is a private exchange between two people and their lawyers, while disclosure in court proceedings is a legal duty owed to the other party and to the court, backed by penalties.

The table below compares the two, because understanding the gap explains why voluntary disclosure needs to be documented so carefully.

The most important line in that table is the last one. In litigation, the party who hides something generally carries the consequences, because the court has tools to punish them.

With a BFA, the incentives run differently, because the party who most wants the agreement to hold is also the party whose agreement is at risk if their disclosure was thin.

Protecting your assets and disclosing them fully are not opposites. They are the same job.

What Happens if You Think Your Partner Is Hiding Something?

If you suspect something has been left out, the time to deal with it is before you sign, because your options afterwards involve a court, a solicitor and a great deal of money.

Once an agreement is signed, changing the outcome means applying to set it aside, proving the non-disclosure and proving it was material.

That is a real case with real evidence, and it usually happens at the worst possible moment, which is during a separation.

Before signing, the same problem is solved by asking questions and waiting for documents. Litigating a later challenge can be substantially more expensive than resolving disclosure questions before anyone signs.

Can You Get Superannuation Details From the ATO Before You Sign?

The court process for obtaining superannuation information from the Australian Taxation Office is not available simply because you are negotiating an agreement, because it requires a current property settlement case.

The Federal Circuit and Family Court explains that to make a request you must “be part of a current property settlement proceeding in relation to your marriage or de facto relationship”, and the request is lodged through the Commonwealth Courts Portal.

A couple negotiating a BFA before separation is not in proceedings, so that route is closed to them.

What you can do instead is ask for a member statement from every fund, and ask directly whether there are any other accounts.

That is worth doing even where the court process is available, because the Court warns that the information provided by the ATO “may not reflect an up-to-date account balance and should not be solely relied on”.

Superannuation is worth chasing properly, particularly where a self managed fund is involved.

Australian Taxation Office figures for the March 2026 quarter record 672,805 self managed super funds with 1,239,977 members and total estimated assets of $1.06 trillion, and those funds can hold assets such as property and unlisted investments that may need more work to value than confirming the balance of an ordinary superannuation account.

What Should You Do Before You Sign?

Slow down and get the missing document, because there is no version of this problem that gets easier after signature.

Ask for the last two or three years of tax returns and notices of assessment if there is a business or investment income involved.

Ask for the financial statements of any company or trust, and for the trust deed itself, so your lawyer can see who controls what.

Ask for loan statements as well as asset values, because a property held in one name can be carrying a debt in another.

If the answer to any of this is that there is no time, treat that as information about the deal rather than about the paperwork.

Pressure to sign quickly or reluctance to provide requested financial information are both good reasons to slow the process down and take further advice.

How Do You Build Disclosure That Holds Up Years Later?

You build disclosure that holds up by putting the financial information into the agreement itself, dating it, and keeping the material that supports it.

A conversation about assets proves nothing in five years. A schedule attached to the signed agreement, backed by a file of statements and valuations, proves a great deal.

The gap between signing and testing an agreement is long, which is why the record matters so much.

The Australian Bureau of Statistics recorded more than 49,000 divorces granted in Australia in 2025 and 118,804 marriages registered in the same year, and among those divorces the median duration from marriage to divorce was 13.4 years.

Anything you rely on memory for today is something you will be trying to recall more than a decade from now.

Should the Agreement Include a Schedule of Assets?

The Family Law Act does not require one, but including a schedule setting out each party’s assets, liabilities, superannuation and income at the date of signing is commonly recommended.

The schedule is what turns disclosure from a private conversation into a permanent record. It also gives each lawyer something concrete to advise on, which supports the independent advice that the Act requires before signing.

Values should be described honestly, including how they were arrived at, whether that was a market appraisal, a formal valuation, a bank statement or an estimate.

Where a figure is genuinely an estimate, say so in the schedule rather than presenting it as a hard number.

An honest estimate that is later shown to be a little off is a very different thing from a precise-looking figure that was never true.

How Current Do Your Figures Need to Be?

There is no statutory rule about how current your figures must be, so the practical test is whether the disclosure gives both parties and their lawyers a reliable picture of the financial position at signing.

Bank balances, share portfolios and cryptocurrency move quickly, so a recent statement is far more useful than one from last year.

Property appraisals age more slowly but still age, and an old valuation can invite an argument that the pool was understated.

Business figures usually run to the last completed financial year, which is normal and defensible, provided the agreement says which period the figures cover. If the process drags on and the numbers go stale, refresh them before signing rather than after.

Which Assets Need the Most Work?

Business interests, trusts, self managed funds and digital assets usually need the most work, because each one holds value behind a structure rather than showing it on a statement.

A company is not just a set of shares. It is the assets it owns, the loans it carries and the money the owners have put in or taken out.

A discretionary trust does not have owners in the ordinary sense, so the agreement needs to describe who controls it, who benefits from it and what it holds.

Cryptocurrency raises a different problem, since holdings can sit in wallets that no bank or registry will ever report.

The practical answer for all of these is the same, which is to describe the structure as well as the value, and to attach the underlying documents so nobody can say later that they were shown a number without any context.

What Records Should You Keep After Signing?

Because a BFA may not be tested for many years, it is prudent to retain the signed agreement, the schedules, the statements of independent legal advice, and every document exchanged during the process for the long term.

Your lawyer will hold a file, but files are archived, and firms change, so hold your own copy as well.

Store the drafts and the correspondence too, because the timeline of who sent what and when is often the evidence that answers an accusation of pressure or concealment.

Secure backup copies, including scanned copies kept somewhere safe, are worth maintaining alongside the originals. The one approach to avoid is relying on someone else to have kept the paperwork.

What Else Should You Know About Disclosure?

Disclosure is not a single event at the start of the process, and a few practical points sit around it that are easy to overlook.

Understanding them helps you get an agreement that keeps working rather than one that only looks right on the day it is signed.

Does Disclosure Work Differently for De Facto Couples?

For agreements governed by Part VIIIAB of the Family Law Act, the position is the same for de facto couples, because the set-aside provision covers non-disclosure in identical terms.

Section 90UM(1)(a) allows a court to set aside a Part VIIIAB financial agreement where “the agreement was obtained by fraud (including non-disclosure of a material matter)”, which mirrors the provision that applies to married couples.

Western Australia is the exception worth knowing about, because Legal Aid WA confirms that “if you were in a de facto relationship, the Family Court Act 1997 (WA) applies to your relationship”.

De facto couples in Western Australia should ask their lawyer which regime applies to their agreement before they start.

An additional issue that can arise for couples who are not married is proving when the relationship began. Financial records from the early period can matter, so keep them.

What if Your Finances Change After You Sign?

A BFA does not usually require you to update your partner every time your finances change, unless the agreement itself imposes an ongoing obligation, but major changes are a good reason to review whether it still does what you wanted.

Selling a business, receiving an inheritance, buying property together or taking on a large joint debt can all shift the position the agreement was built around.

A change in financial circumstances does not automatically end a BFA, although the Act contains further set-aside grounds that can become relevant after signing, including impracticability and certain material changes involving the care of a child that cause hardship.

As a practical matter, reviewing an agreement usually costs far less than defending one. Where the change is substantial, replacing the agreement with a new one that reflects the current position is often cleaner than trying to work around the original.

Does Disclosing Everything Weaken Your Position?

No, comprehensive disclosure supports your position, because the whole value of a BFA lies in whether it survives a challenge.

People sometimes worry that revealing the full extent of their assets will encourage their partner to ask for more.

It might lead to a harder negotiation, and that is a much better problem than an agreement that fails when it is finally needed.

An agreement that quarantines a business worth $2 million is only useful if it stands up, and it will not stand up if the other party can show they were told the business was worth $400,000.

The strongest agreements are the ones where both parties knew exactly what they were doing, took proper advice, and can prove it.

Need Help With Financial Disclosure for Your BFA?

Financial disclosure is what turns a binding financial agreement from a document into protection, because an agreement obtained by non-disclosure of a material matter can be set aside years after it was signed.

As binding financial agreement lawyers in Australia, my law firm can guide you through what needs to be disclosed, prepare the schedules and the agreement properly, and handle the whole process at a transparent fixed fee.

Contact my law firm today by calling 1300-529-888.

Frequently Asked Questions

What has to be disclosed before signing a binding financial agreement?

Comprehensive disclosure is strongly advisable, covering property, bank accounts, shares, cryptocurrency, superannuation, business and trust interests, debts, income and material expected interests. The Family Law Act does not prescribe a disclosure form for financial agreements, but withholding a material matter gives a court a ground to set the agreement aside, so documents supporting each figure are worth keeping.

Can a BFA be set aside for failing to disclose assets?

Yes. Section 90K(1)(a) of the Family Law Act allows a court to set aside a financial agreement obtained by fraud, and expressly includes non-disclosure of a material matter. Section 90UM(1)(a) applies the same ground to Part VIIIAB agreements. On this ground, the challenging party must show a material matter was withheld, though the Act also contains several other set-aside grounds.

What counts as a material matter for disclosure purposes?

The Act uses the term without defining it exhaustively and sets no dollar threshold, so materiality is decided on the facts. As a practical explanation, it tends to turn on how significant the omitted information was to the agreement. An undisclosed investment property, superannuation account, shareholding or significant loan is far more likely to qualify than a small balance.

Do you need a schedule of assets attached to the agreement?

The Family Law Act does not require one, but a dated schedule of each party’s assets, liabilities, superannuation and income is commonly recommended. It creates a permanent record of what each person knew at signing, gives both lawyers a solid basis for their independent advice, and makes a later claim of concealment considerably harder to run.

Can you get your partner’s superannuation details from the ATO before signing a BFA?

Not through the court process, which requires a current property settlement proceeding and is lodged through the Commonwealth Courts Portal. When you are negotiating a BFA, request member statements directly from your partner and ask whether other accounts exist. The Court also warns that information from the ATO may not show an up-to-date balance.

How long should you keep financial disclosure records after signing?

Retain them for the long term. Among divorces granted in Australia in 2025, the median duration from marriage to divorce was 13.4 years, so an agreement may not be tested for a decade or more. Keep the signed agreement, the asset schedules, the statements of independent legal advice, the supporting valuations and the correspondence showing when each document was exchanged.