Do You Need a Prenuptial Agreement? Here's What You Need to Know

Law Blog

It's not as though you would like to embark upon a serious, committed relationship with one eye on the possibility of things not working out. Having said that, around one in three first marriages will end in divorce, and de facto relationships do not fare much better. Ending a committed relationship is never easy, and the separation will be amicable if you're lucky. Things do not always proceed quite so smoothly, and there can often be a conflict when it comes to the division of financial and physical assets, as well as the matter of any ongoing financial maintenance that is to be made to either party. Sometimes these matters need to go to mediation or even before a family law court for an official ruling. It's possible to sidestep this unpleasantness by having both you and your partner consent to a prenuptial agreement. So how does a prenuptial agreement actually work?

Worst Case Scenario

If you choose to broach the topic of a prenuptial agreement with your partner, it's important to remember that this is a worst case scenario only. While it's still referred to as a prenuptial agreement, the "pre" is misleading. In Australia, such an agreement can be reached prior to, or during a marriage or de facto relationship. While it's commonly known as a prenuptial agreement, its formal title is a binding financial agreement (BFA). It is essentially a legally binding contract. It cannot be reached after one or both parties have decided to end the relationship and is more for planning for the possible eventuality of the relationship ending, well before such an ending is on the horizon.


A BFA is a mutually agreed upon division on all assets, as well as a plan for the division of any assets that might have been obtained during the relationship. It also takes ongoing financial maintenance into account, and the duration of the relationship can affect the amount. Even if a BFA has been signed by both parties prior to a marriage or during a relationship, there are some instances where it can be declared void.

A BFA can be overruled by a family court in a variety of scenarios, including the following:

  • Evidence where one party has been pressured into signing the agreement by the other party. Perhaps they were told that the marriage would not take place unless an agreement was signed.
  • Evidence where an exhaustive disclosure of all assets has not taken place. If one party willfully or accidentally fails to disclose any assets, a judge might rule that the entire BFA is void.

You would of course hope that you would never have to make use of a BFA. But it can be a good insurance policy for the future, to ensure that if an ending is to come, then it is at least fair for both of you.


22 December 2015

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