Most people believe a Binding Financial Agreement fails because of a technical legal flaw.
In reality, many agreements fail long before a judge looks at clauses, disclosure schedules, or certificates.
They fail at the human decision-making stage.
Courts do not assess BFAs in a vacuum. They examine the circumstances, pressures, behaviour, and mindset surrounding the agreement. This is psychological scrutiny, even if the judgment is written in legal language.
The assumption that causes problems
Many agreements are built on one dangerous assumption:
“If it’s legally correct, it will be upheld.”
That assumption is wrong.
Courts assess whether the agreement was entered into freely, voluntarily, and with genuine understanding. That assessment is deeply human, not purely technical.
Cognitive overload at the time of signing
One of the most common risk factors we see is cognitive overload.
Clients are often:
- emotionally stressed
- facing time pressure
- processing complex financial information
- navigating relationship power dynamics
- signing documents they do not fully absorb
A person can receive legal advice and still not meaningfully process it. Courts know this. Judges look at whether advice was understood, not just delivered.
Power imbalance is felt, not written
Power imbalance does not need to be explicit to be real.
It may arise from:
- financial dependence
- immigration status
- pregnancy or caregiving roles
- fear of relationship breakdown
- urgency around weddings or relocations
An agreement can look neutral on paper and still reflect imbalance in practice. Courts are increasingly attentive to this gap.
Rushed agreements unravel
Timing matters more than most people realise.
When drafts are exchanged late, signing occurs close to major life events, or deadlines are imposed indirectly, the court may infer pressure even if no one explicitly applied it.
The issue is not whether pressure was intended.
The issue is whether pressure existed.
Why informed consent is more than a certificate
A signed certificate does not automatically equal informed consent.
Courts consider:
- whether alternatives were genuinely discussed
- whether amendments were meaningfully offered
- whether advice addressed consequences, not just content
- whether the client had real freedom to say no
If the surrounding conduct contradicts the idea of free choice, the agreement becomes vulnerable.
What this means in practice
A legally neat agreement can still fail if:
- the process was rushed
- the advice was transactional rather than explanatory
- the human context was ignored
This is why we structure Binding Financial Agreements around process protection, not just drafting.
A strong BFA is one that survives both legal scrutiny and psychological scrutiny.
If you are considering a Binding Financial Agreement or an independent review, the most important question is not “Is this document correct?”
It is “Does the process surrounding this agreement stand up if examined years later?”
That is where enforceability is decided.
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