A prenuptial agreement, commonly known as a prenup, is a legal document that outlines how a couple’s assets will be divided in the event of a separation or divorce. In Australia, these agreements are officially called Binding Financial Agreements (BFAs) and are governed by the Family Law Act 1975. While a well-drafted prenup can provide clarity and protection, it must meet strict legal requirements to be enforceable.

Let’s dive deeper. 

What Makes a Prenup Legally Binding?

For a prenup to be legally binding in Australia, it must meet, amongst other requirements, the following: 

  • Independent legal advice – Both parties must obtain separate legal advice from qualified lawyers, explaining their rights and the implications of the agreement.
  • Written agreement – The agreement must be in writing and signed by both parties.
  • Full financial disclosure – Both parties must fully disclose their assets, debts, and financial resources to ensure fairness.
  • Voluntary agreement – The agreement must be signed without coercion, undue pressure, or manipulation.

If any of these elements are missing, the agreement may not be enforceable in court.

When Can a Prenup Be Challenged?

Even if an agreement meets legal requirements, there are situations where a court may set it aside. These include:

  • Unfair terms or significant disadvantage – If the prenup disproportionately benefits one party and leaves the other in financial hardship, a court may intervene.
  • Changes in circumstances – If major life changes, such as the birth of children, significantly impact the fairness of the agreement, it may be challenged.
  • Failure to disclose assets – If one party has hidden assets or provided misleading financial information, the agreement may be declared invalid.
  • Mistakes or procedural errors – Poor drafting, incorrect legal procedures, or missing key requirements can make the prenup unenforceable.

Should You Get a Prenup?

A Binding Financial Agreement can provide security and reduce disputes over asset division, but each situation is unique to everyone. Prenups are commonly used by individuals who:

  • Own significant assets before marriage
  • Want to protect family businesses or inheritances
  • Have children from previous relationships
  • Want to avoid lengthy and costly legal disputes in case of separation

At Reid Legal, we specialise in family law and Binding Financial Agreements. Our team ensures that prenups are legally compliant, fair, and tailored to individual needs.

If you are considering a prenup, contact us today to discuss your options and ensure your agreement is legally enforceable.