Continue reading to learn everything you need to know about prenuptial agreements in Australia.
What is a Prenuptial Agreement in Australia?
A prenuptial agreement (more commonly known as a ‘prenup’) is a type of Binding Financial Agreement (BFA) that is legally binding under the Family Law Act 1975.
A Binding Financial Agreement made between married or de facto couples outlines the following:
- How financial assets and property will be divided if the relationship comes to an end
- Whether either party will receive spousal maintenance
- How potential debts are handled
- How superannuation will be treated
Who is Eligible for a Prenuptial Agreement in Australia?
A prenuptial agreement is an option for the following:
- De facto couples: Made either before getting into a relationship or during a relationship, regardless of sexuality.
- Engaged couples: An agreement made between a couple before they become legally married.
- Married couples: An agreement made between a married couple. Sometimes referred to as a ‘post-nuptial’ agreement, but they follow the same guidelines as a pre-nuptial agreement.
Are Pre-Nuptial Agreements Legally Binding in Australia?
Pre-nuptial agreements are legally binding under the strict guidelines of the Family Law Act 1975.
A pre-nuptial agreement must adhere to the following:
- Legal advice: Both parties need to receive independent legal advice from separate lawyers before signing a pre-nuptial agreement. This ensures you are legally protected and understand exactly what it is you are agreeing to.
- A certificate of independent legal advice: Your solicitor will provide you with a certificate of independent legal advice, which you will need to sign to show that your lawyer has clearly laid out all the risks and legal obligations of a prenuptial agreement.
- Voluntarily sign the agreement: You must sign the prenuptial agreement on your own, without any threats, coercion, or pressure.
- Full financial disclosure: Both parties must be completely honest and disclose all their assets, property, liabilities, income, and financial resources.
It’s important to note that if any of these guidelines are not followed, a court will have no problem setting the agreement aside.
What Does a Prenuptial Agreement Cover?
| Area | Details |
| Property and Real Estate | Who keeps the family home and any investment properties |
| Business Interests | Protection of business ownership or shares |
| Savings and Investments | Bank accounts, shares and managed funds |
| Superannuation | How the super will be split or protected |
| Debts and Liabilities | Who is responsible for pre-existing debts |
| Spousal Maintenance | Whether one party will need to support the other financially |
| Inheritances | Protection of expected or received inheritances |
What a Prenuptial Agreement Does NOT Cover
A prenuptial agreement does not cover the following areas:
- Child support
- Parenting or child custody arrangements
- Anything that is obtained through duress, threat, fraud or unconscionable conduct
How to Get a Prenuptial Agreement in Australia: A Step-By-Step Guide
In Australia, here is the process for getting a prenuptial agreement:
Discuss: Start discussing the idea of getting a prenuptial agreement months before you get married or before you move in together. Make sure you are both on the same page. Whatever you do, don’t rush this process.
Find your own lawyers: It’s important that each partner hires their own lawyer. It is not ethical to share the same lawyer.
Full financial disclosure: Both partners are required to provide complete and honest information about their financial situation, including any assets, debts, incomes, superannuation and any expected future inheritances.
If you aren’t transparent, it can result in serious legal consequences.
The agreement is drawn up: One of your lawyers prepares the prenuptial agreement, including all the details you and your partner have agreed on. The other party’s lawyer reviews it and can suggest changes if needed.
Signing the agreement: Once you and your partner are happy with the prenuptial agreement, it is signed in the presence of each party’s lawyer.
The prenuptial agreement is stored safely: Both parties keep a signed copy and must store it somewhere safe (ideally, a safe or another fireproof place).
When Can a Prenuptial Agreement Be Challenged or Discarded?
In Australia, a prenuptial agreement can be challenged or discarded under Section 90K of the Family Law Act 1975 if the following conditions are met:
- Non-disclosure of assets: The prenuptial agreement was obtained through fraud (dishonest disclosure of financial assets).
- Signed under threat: It was signed under threat, duress or undue influence.
- Failed to get valid legal representation: One or both parties did not receive their own legal advice.
- Change of personal circumstances: The personal circumstances (such as financial or living situations) have changed significantly, so the prenuptial agreement is no longer valid or effective.
- Agreement is void: The agreement has become void under general contract law.
- Unfairness: The agreement is one-sided due to a significant power imbalance.
- Non-compliance: The agreement does not meet the formal guidelines outlined in the Family Law Act 1975.
This is why it’s so important to get proper legal advice and representation, and to ensure that you are always honest about your financial situation and any changes that may arise.
Prenuptial Agreement vs. Consent Orders
| Feature | Prenuptial Agreement (BFA) | Consent Orders |
| When is it used? | Before or during a relationship | After a couple has separated |
| How much is the court involved? | Not required | Application filed with the Federal Circuit and Family Court |
| Is it flexible? | Yes, very flexible and relies on both parties agreeing | Moderate flexibility (court approval may be needed) |
| Can it cover maintenance? | Yes | Yes |
| Can it be discarded? | Yes, under section 90K of the Family Law Act 1975 | Yes, but it is harder to challenge |
What Are the Common Mistakes People Make with Prenuptial Agreements?
Signing it Too Late
If you organise and sign a prenuptial agreement the week before your wedding, it can be a red flag. You and your partner may be questioned by the court about your expectations and whether you were rushed into signing a prenuptial agreement.
This is why we strongly recommend starting the process a few months before you get married.
Neglecting to Disclose Financial Situation
If you hide assets, whether intentionally or unintentionally, it can make a prenuptial agreement invalid.
That’s why full financial disclosure is a legal requirement, and not just a suggestion.
Sharing a Lawyer
Both parties need to have their own lawyer. Sharing one lawyer between both parties can create a conflict of interest and render the agreement void.
Using a DIY or Template Prenuptial Agreement
While it can be easy and cheaper to find an online template, not every template for prenuptial agreements adheres to Australian law or to every couple’s specific circumstances.
Every prenuptial agreement in Australia must comply with the Family Law Act 1975 to be legally binding.
Not Planning for Future Changes
Failing to take potential future scenarios into consideration, such as a change of careers, the addition of children, moving countries or states, and inheriting large sums of money, can have a negative impact on the validity of the prenuptial agreement.
Including Non-Financial Clauses
Parenting and child custody arrangements are not allowed to be included in a prenuptial agreement and will cause it to become invalid.
Unfairness
If there is a significant and obvious power imbalance in the prenuptial agreement, it can cause issues.
Non-Compliance with the Family Law Act
If the prenuptial agreement isn’t compliant with the Family Law Act guidelines, the agreement is null and void.
Never Reviewing It
You will need to review your prenuptial agreement every few years to reflect any new circumstances that may arise (such as children, new business ownership, or an inheritance).
If you fail to review your prenuptial agreement after major life changes, it will no longer be valid.
De Facto Couples and Prenuptial Agreements
De facto couples (couples who live together, share finances and children and who have long relationships) can get a prenuptial agreement under Part VIIIAB of the Family Law Act 1975.
The requirements of a prenuptial agreement for a de facto relationship and a married couple are the same (legal advice and full financial disclosure).
At Meredith Lawyers, we have years of experience drawing up prenuptial agreements. We take pride in approaching each prenuptial agreement with fairness, respect and sensitivity, and we always strive to protect our clients’ interests and prioritise the best outcome for you.
Contact us at 1300 537 306 to find out more about Prenuptial Agreements and our other services.
FAQs
Are Prenuptial Agreements Enforceable in Australia?
If all the requirements of the Family Law Act 1975 are met, including legal advice, full disclosure, and voluntary signing, then a prenuptial agreement is enforceable in Australia.
Can Couples Write Their Own Prenuptial Agreement?
Not legally. While it can be easy to fill out a prenuptial agreement template, it most likely won’t meet all the legal requirements of the Family Law Act 1975 and therefore will not be legally binding.
How Long Does it Take to Get a Prenuptial Agreement in Australia?
The process typically takes around two months to complete. This length of time includes everything from the first consultation to the signing of the prenuptial agreement.
Can a Prenuptial Agreement Be Changed After Marriage?
Yes, a prenuptial agreement can be modified at any time, as long as the change is made in mutual agreement and is in accordance with legal advice.
This is technically called a ‘post-nuptial agreement’.
What Happens if You Don’t Have a Prenuptial Agreement and You Separate?
If you don’t have a prenuptial agreement and you and your partner decide to separate, you will need to negotiate with legal representation to work out property and asset division. Alternatively, a consent order will need to be drawn up.
The court will make decisions based on the Family Law Act 1975, which may or may not result in the outcome either party expected.
Does a Prenuptial Agreement Mean That There Is No Trust Between Couples?
While this is a common misconception people have about prenuptial agreements, it isn’t the right one. In reality, a prenuptial agreement shows that you trust your partner to be transparent.
Being open about your financial situation and expectations early on in your relationship or marriage can reduce financial stress and strengthen communication and trust between partners.
What Do Prenuptial Agreements Cover?
Prenuptial agreements address assets owned before, during and after a relationship, property division and spousal maintenance.
