Binding financial agreements and prenups
A binding financial agreement lets you decide, together and in advance, how your finances would be handled if your relationship ended. Done properly, it gives you both certainty.
Start with a free 20-minute discovery call. Meetings across Australia, in person or online.
Talking about finances before marrying or moving in together is not unromantic. It is often a sign of a relationship built on honesty.
Binding financial agreements are often sought by people entering a second relationship, those with children from an earlier relationship, business owners, and families wanting to protect an inheritance or family property.
They can also be made after separation, as an alternative to consent orders, to finalise a property settlement privately.
An agreement that supports the relationship
The way an agreement is negotiated matters as much as what it says. We keep the process respectful, clear and well paced, so it strengthens trust rather than straining it.
An agreement works best alongside your wider planning. We can coordinate with your will and estate plan, your accountant and, where it would help, couples support through Florens Psychology & Wellbeing.
Wills, estates and succession planningHow we can assist
Whether you are planning ahead, already together or separating, we prepare agreements carefully and give you clear advice on any agreement you are asked to sign.
Before marriage
Prenuptial agreements setting out how finances would be dealt with if the marriage ended.
Learn moreBefore moving in together
Agreements for de facto couples, made before or at the start of living together.
During a relationship
Agreements made at any point in a marriage or de facto relationship, such as after an inheritance or a new business.
After separation
Finalising a property settlement privately, as an alternative to consent orders.
Advice on an agreement you have received
Independent advice on an agreement prepared by your partner’s lawyer, and negotiating changes.
Updating or ending an agreement
Varying an agreement as circumstances change, or bringing it to an end.
Challenges and enforcement
Advice where an agreement may be set aside, or where one party is not following it.
Each party must receive independent legal advice from a different lawyer, so we act for one party only. We are happy to work with your partner’s chosen lawyer. Where an agreement protects a business, trust or other structure, we work alongside your accountant or financial planner.
How a binding financial agreement is made
Binding financial agreements must meet strict requirements under the Family Law Act. Getting the process right is what makes an agreement hold up.
Call 1300 739 954Initial advice
We talk through your goals, what the agreement should cover and the timing. Starting early, ideally months before a wedding, protects you both.
Financial disclosure
Each of you sets out your assets, liabilities, income and expected inheritances. Complete disclosure protects the agreement, because failing to disclose a material matter can be grounds to set it aside.
Drafting
We prepare clear terms covering property, superannuation and spousal maintenance, what happens to assets acquired later, and how changes in family circumstances are handled.
Independent legal advice
Before signing, each of you must receive independent advice from your own lawyer about the effect of the agreement on your rights and its advantages and disadvantages.
Signing
Both parties sign, with a signed statement from each lawyer confirming the advice was given. Each party keeps a copy, and the original should be stored safely.
Review as life changes
The birth of children, a new business or a significant inheritance can affect whether an agreement still works. We recommend reviewing it at key milestones.
“The Team at Franklin Family law are amazing, empathetic and professional. They truly had my best interests at heart and looked after me with care and professionalism.”
Thinking about a financial agreement?
Talk to us about protecting what you each bring.
What makes an agreement hold up
The Court can set aside a binding financial agreement in limited circumstances. Most challenges come back to the same three issues.
Full disclosure
An agreement can be set aside for fraud, including failing to disclose a material matter. Honest, complete disclosure is the best protection.
No pressure
Agreements signed under duress, undue pressure or at the last minute are more vulnerable. Allowing time for advice and negotiation matters.
Changes involving children
A material change relating to the care of a child, causing hardship if the agreement is not set aside, can be grounds to set it aside.
Agreements can also fail if the formal requirements are not met, which is why each step needs care.
Common questions about binding financial agreements
What is a binding financial agreement?
It is a written agreement under the Family Law Act setting out how property, superannuation and other financial matters will be dealt with if a relationship ends. It can be made before, during or after a marriage or de facto relationship.
Are prenups legally binding in Australia?
Yes, if the agreement meets the strict requirements of the Family Law Act, including independent legal advice for each party. In Australia, a prenup is a binding financial agreement made before marriage.
Do we each need our own lawyer?
Yes. Each of you must receive independent legal advice from a different lawyer before signing, so we can act for only one of you.
How early should we start?
As early as possible, ideally several months before a wedding. Agreements negotiated and signed close to the wedding date are more open to claims of pressure.
Can a binding financial agreement be set aside?
Yes, in limited circumstances. These include fraud or non-disclosure of a material matter, duress or unconscionable conduct, where the agreement has become impracticable to carry out, a material change relating to the care of a child that causes hardship, or failure to meet the formal requirements.
Can an agreement cover superannuation?
Yes. An agreement can include a superannuation split, and the fund’s trustee is notified as part of the process.
Can it cover spousal maintenance?
Yes. An agreement can deal with spousal maintenance as well as property and superannuation. Any maintenance provisions must clearly identify who is to be maintained and the amount or value involved.
Can it deal with the children?
A binding financial agreement cannot decide parenting arrangements, which are always based on the children’s best interests. Child support can be dealt with separately through a child support agreement.
Can we change or end the agreement later?
Yes. You can make a new agreement or a termination agreement, and each of you will again need independent legal advice.
After separation, should we use consent orders or a financial agreement?
Both can finalise a property settlement. Consent orders are checked by the Court to ensure they are just and equitable. A financial agreement is private and not reviewed by the Court, but must meet strict formal requirements. We will advise which suits your circumstances.
What does it cost?
Your first step is a free 20-minute discovery call, where we listen, explain your options and outline what working with us could look like. If you go ahead, we explain costs clearly at the outset.
This is general information, not legal advice for your situation.
Certainty for both of you.
Whether you are planning a wedding, moving in together or finalising a separation, we invite you to start with a confidential conversation about what an agreement could do for you.
