Binding financial agreements under Part VIIIA.

In everyday conversation, “prenup” and “binding financial agreement” are often used interchangeably. There is, however, an important distinction. In Australia, a financial agreement before marriage does not draw its force from the general law of contract alone. To be intended as binding and to exclude the court’s jurisdiction over property settlement, an agreement before marriage must comply with the formal requirements of s 90B of the Family Law Act 1975 (Cth): it must be in writing, signed by both parties, and accompanied by independent legal advice certificates from two separately retained solicitors. An agreement that calls itself a “prenup” but does not meet these statutory requirements is not binding and does not prevent either party from applying to the court for a property order. A BFA that satisfies those requirements is a statutory instrument, not simply a contract, and the binding force it is intended to carry is a function of compliance with the Act.

Yes. This is one of the strict requirements under s 90G of the Family Law Act 1975 (Cth). Before signing, each party must receive independent legal advice from a separate legal practitioner engaged solely for that party. A solicitor cannot act for both parties on a BFA. The advice must cover the effect of the agreement on that party’s rights and the advantages and disadvantages of making it. After giving that advice, the solicitor must sign a written certificate confirming the advice was given, and that certificate must be attached to the agreement. An agreement where one solicitor advised both parties, or where no certificate was provided, does not meet s 90G(1). This is not a procedural formality; it is the mechanism by which the law is intended to ensure that each party genuinely understood what they were agreeing to.

Yes. A BFA can be set aside by the Federal Circuit and Family Court of Australia on the grounds listed in s 90K of the Family Law Act 1975 (Cth). The main grounds are fraud (including material non-disclosure of assets), unconscionable conduct (including pressure or exploitation of a party’s vulnerability), duress, undue influence, mistake of fact, and changed circumstances relating to the care of children that would cause hardship if the agreement were not set aside. In Thorne v Kennedy (2017) 263 CLR 85, the High Court unanimously set aside two formally executed BFAs on grounds of unconscionable conduct and undue influence, finding that the circumstances of execution removed Ms Thorne’s genuine freedom to refuse. Compliance with the formal requirements of s 90G goes a long way toward establishing binding force, subject to the grounds for set-aside in s 90K, but formal compliance alone does not immunise an agreement against a challenge, as that case confirms. A BFA is more likely to withstand scrutiny where both parties were independently and genuinely advised, disclosure was complete, there was no pressure at signing, and the terms are not grossly one-sided.

Independent legal advice (ILA) is not a formality, and a certificate signed after a brief meeting at which the financial schedules were not reviewed is not the kind of ILA that provides meaningful protection. For the advice to satisfy s 90G, the solicitor must advise on the effect of the specific agreement on that party’s rights, identify the advantages and disadvantages of making the agreement, and explain what the party would likely receive in property proceedings under s 79 of the Family Law Act 1975 (Cth) if no agreement were made. The quality of the ILA is not tested at execution; it is tested in contested proceedings when one party seeks to have the agreement set aside. At Fraser Lawyers, when Blake Fraser acts as advising solicitor, the advice covers the effect of the agreement on that client’s rights, a comparison with what they would likely receive in property proceedings, the specific advantages and disadvantages of the proposed terms, and any concerns arising from the financial disclosure provided by the other side.

The cost of preparing or reviewing a BFA varies considerably depending on the complexity of the matter: the number and nature of assets, whether trust or company structures are involved, whether superannuation splitting is required, and how many rounds of negotiation are needed before terms are agreed. Because both parties must retain their own solicitor, the total cost across the transaction includes both sets of legal fees. Fraser Lawyers provides a costs estimate after an initial discussion, once the nature of the proposed agreement is understood. As a general guide, an agreement between parties with a straightforward asset pool costs less than an agreement covering a business, a trust, or overseas property. Fraser Lawyers does not offer fixed-fee BFA services because each matter is different.

A BFA does not automatically become unenforceable when children are born. However, the birth of children after execution is one of the circumstances that may support a set-aside application under s 90K(1)(d) of the Family Law Act 1975 (Cth), if a material change in circumstances relating to the care, welfare, or development of a child has occurred and, as a result, a child or the carer would suffer hardship if the agreement were not set aside. Whether that ground is made out in any particular case depends on the specific terms of the agreement and the financial position of the parties and children at the time the issue arises. Couples who sign a BFA before having children should consider reviewing the agreement, and if appropriate replacing it with a new agreement under the same s 90G requirements, when their circumstances change materially.

No. A BFA and a property consent order are different instruments governed by different parts of the Family Law Act 1975 (Cth). A BFA is a contract between the parties made outside the court, without any judicial scrutiny of its terms at the time it is made. A consent order is filed with the Federal Circuit and Family Court of Australia, and a judge or registrar must be satisfied that the proposed orders are just and equitable before making them. Consent orders are directly enforceable as court orders. A BFA is enforceable by specific performance proceedings. Both instruments can achieve a similar practical outcome of dividing the asset pool on agreed terms, but they have different processes, different formal requirements, different costs, and different long-term risk profiles. The right instrument depends on the parties’ circumstances and what they are trying to achieve.

Yes. Part VIIIAB of the Family Law Act 1975 (Cth) provides equivalent BFA provisions for de facto couples. Section 90UB covers agreements made before a de facto relationship commences, s 90UC covers agreements made during the relationship, and s 90UD covers agreements made after the relationship has broken down. The formal requirements under s 90UJ (independent legal advice, signed certificates, written agreement) are substantially identical to those that apply to married couples under s 90G. The grounds for setting aside under s 90UM mirror s 90K. Queensland opted into the Commonwealth de facto property regime in 2010, so these provisions apply to de facto couples in Queensland provided the relationship meets the duration or other qualifying thresholds. If you are in a de facto relationship on the Gold Coast and are considering a financial agreement, the law that governs your agreement is the Family Law Act 1975 (Cth), not Queensland property law.