Elevate Family Law

Prenuptial Agreements in Australia

  • A pre-nup (pre-nuptial agreement) is a type of financial agreement which is governed by the Family Law Act 1975
  • It is a type of Binding Financial Agreement that is drawn up before marriage and details how some or all of your and your partner’s assets will be divided in the event of separation.
  • The purpose of this is to avoid being  costly and lengthy court proceedings post separation.
  • The Family Act permits heterosexual and same-sex couples to enter into legally binding agreements
  • Financial Agreements can deal with any or all of the below and how they are managed post separation :
    • both parties separate assets, liabilities and financial resources (including superannuation) accrued prior to the relationship.
    • Property acquired during the relationship and sets out how joint property will be allocated in the event of separation.
    • Prenups can also point out spousal maintenance payments- in the cases where relevant- specific to your relationship.

Advantages of a Pre-nup

why get a BFA?

  • Preparing a BFA eliminates the need for the spouses to resort to the court system in the allocation of assets post-separation
  • Peace of mind and clarity – It can allay concerns regarding financial assets and future uncertainties in the unfortunate event of separation
  • Private and Confidential – Prenups are drafted with the solicitors and the couple – eliminating dragging proceedings through the courts.
  • Goodwill and open Pre-Marriage Conversation – Making BFAs out of the emotional heat of divorce encourages discussions in good faith and promotes openness of the parties’ financial positions.

What makes a financial agreement Invalid?

Under the Family Law Act, BFA’s need to satisfy certain technical  requirements:

  • Both parties need to have relevant legal advice prior to signing the prenuptial agreement
  • The agreement should be entered into with the full, free consent of both of parties and under no duress.
  • All parties are obligated to disclose relevant information without misrepresentation

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Prenup Lawyer FAQs

In Australia there are 3 broad categories:

  • A Binding Financial Agreement at or near the time of the commencement of a relationship;
  • A Binding Financial Agreement during a relationship; or
  • A Binding Financial Agreement after a separation

Essentially, there is no difference. BFA is the technical formal term and prenup, derived from the U.S, is the commonly used term. In Australia, prenuptial agreements are binding financial agreements entered before the commencement of the marriage (or a de facto relationship).

No – Not entirely. Pursuant to The Family Law Act , for a Binding Financial Agreement (BFA’s) to be enforceable, both parties need to have consulted and sought legal advice prior to signing the agreement and solicitor sign-off is required.