Are Prenups Legal in Australia?
                     Justice Family Lawyers
LAWY
Are Prenups Legal in 
Australia?
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au
Justice Family Lawyers
ARE PRENUPS LEGAL IN 
PArenuUptial aSgreemTentsR are aA comLpleteIlyA valid ?way of cementing an agreement between two parties ahead of their marriage.
When it comes to creating a legally binding agreement between two parties ahead of their 
marriage, Prenuptial agreements are becoming increasingly popular in Australia.
But how valid are they? Our prenup lawyers have years of experience in family law, and 
we’re here to help untangle the legality of pre-nuptial agreements in Australia.
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PRENUPTIAL AGREEMENT 
DSimplyE put, Fa preInuNptial aIgrTeemeInOt (or a Nprenup, as they’re often called) is a legally 
recognized contract in Australia made before marriage, and the answer to 
how valid are prenuptial agreements in Australia depends on whether the agreement meets 
strict legal requirements under the Family Law Act.
Prenups detail arrangements regarding property, finances, and superannuation post-
separation.
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THE VALIDITY OF 
PRENUP 
FAor a GprenupRtial aEgreemEent tMo be coEnsideNred vaTlid, some steps must 
be taken beforehand.
1.Both parties must seek independent legal advice before the 
agreement is signed, to ensure the contents of the document are 
fair and reasonable.
2.Both parties must also provide full and honest disclosure of their 
respective financial positions.
3.Finally, the agreement must be drawn up in a way that all involved 
parties have read and understood the contents.
Section 90G of the Family Law Act governs what provisions must be 
fulfilled to have a prenuptial agreement valid.
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PRENUPTIAL 
AGREEMENTS 
EFor a FprenFuptiaEl agreCemenTt to bIe VeffectEive, yNou neEed toS understand how your finances will look in the future. S
This can be a tricky situation, and it is best practice to update your prenup 
whenever there is a significant change in circumstances in your relationship.
For example, if you have children or have a dramatic change in your health or 
financial circumstances.
This agreement must also be entered into in good faith with both parties 
understanding the contents and circumstances in which the agreement was made.
This means that agreements that are obtained through undue pressure, fraud, or 
by hiding or misrepresenting assets or information could be rendered invalid.
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Justice Family Lawyers Under the Family Law Act 1975, the law stipulates that a prenuptial agreement is 
invalid if any of these circumstances are met:
(1) A court may make an order setting aside a financial agreement or a termination 
agreement if, and only if, the court is satisfied that:
(a) The agreement was obtained by fraud (including non-disclosure of a material 
matter); or
(b) the agreement is void, voidable, or unenforceable; or
(c) In the circumstances that have arisen since the agreement was made, it is 
INVALID impracticable for the agreement or a part of the agreement to be carried out; or(d) since the making of the agreement, a material change in circumstances has 
occurred (being circumstances relating to the care, welfare and development of a 
PRE- child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the 
agreement will suffer hardship if the court does not set the agreement aside; or
NUPTIAL (e) In respect of the making of a financial agreement–a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or
(f) a payment flag is operating under Part VIIIB on a superannuation interest covered 
AGREEM by the agreement, and there is no reasonable likelihood that the operation of the flag will be terminated by a flag lifting agreement under that Part; or
(g) The agreement covers at least one superannuation interest that is an unsplittable 
ENT interest for Part VIIIB.
Some of these clauses are quite general and vague in nature, so we have specific 
www.justicefamilylawyers.com.a case law that explains what the courts mean by words such as “obtained by fraud”.
u For specific advice on your prenuptial agreement, it is best to consult an experienced 
family lawyer.
Justice Family Lawyers
DEALING WITH 
DISPUTES AND 
PRENUPTIAL 
AGREEMENTS
In the event of a dispute, couples should seek legal advice to work out if the prenuptial agreement is enforceable. Couples should also be 
aware that the court has the power to make changes to a prenuptial agreement if they consider it to be unfair or outdated.
This is particularly common if circumstances have changed since the prenuptial agreement was drawn up, such as if one partner is unable to 
maintain employment or if children are added to the family.
In this situation, candidates can ask the court to modify or set aside the prenuptial agreement if circumstances have changed significantly. 
Courts may also invalidate an agreement for a number of reasons, such as if one party withheld information, or if there was any duress or 
fraud.
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CHALLENGING A 
P• PoRssibleE to CNhallenUge: PrPenuptial agreements (Binding Financial Agreements) 
can be set aside, but only on specific legal grounds.
• Failure to Meet Legal Requirements:
• Must be in writing and signed by both parties
• Both parties must receive independent legal advice
• Lawyers must certify advice on the agreement’s effect and consequences
• Lack of Full Financial Disclosure:
• All assets, liabilities, and financial details must be disclosed
• Hiding or misrepresenting finances can invalidate the agreement
• Unfairness or Unconscionable Conduct:
• Agreement is extremely one-sided
• Signed under duress, pressure, undue influence, or exploitation
• Significant Change in Circumstances:
• Major life changes (e.g., children, disability) may make the prenup impractical 
or unjust
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PRENUP VALIDITY AFTER 
10 YEARS
Binding Financial Agreements (BFAs), including Important Considerations:
prenuptial agreements, do not have a fixed expiry • While BFAs don’t automatically 
date. They remain valid indefinitely unless certain expire, the passage of time is a 
conditions are met: factor the court may consider 
• Sunset Clause: If the agreement contains a specific when assessing a challenge. A 
“sunset clause,” it will cease to be valid on the long-standing agreement may 
stipulated date. be harder to overturn.
• Successful Court Challenge: A BFA can be set aside • Periodic review of BFAs is highly 
if a court determines it was procedurally flawed recommended, especially when 
(e.g., lack of independent legal advice), significant life changes occur. 
unconscionable (significantly unfair to one party), This ensures the agreement 
or if there was undue influence or duress during its remains aligned with both 
creation. parties’ financial circumstances 
• Material Change of Circumstances: Significant and intentions.
changes since the BFA’s signing, such as children’s 
birth or a party’s disability, could render the 
agreement unfair. The court may decide in such 
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Justice Family Lawyers MAKING SURE YOUR 
PRENUPTIAL 
AGREEMENT IS VALID
At Justice Family Lawyers, we understand the importance of entering into a valid 
prenuptial agreement.
We have a team of experienced family lawyers who are on hand to help with your 
prenuptial agreement.
No matter what stage in the prenuptial agreement process you are in, don’t 
hesitate to get in contact with us. We’re here to change the way Australians seek 
legal help, so if you’re wondering how valid are prenuptial agreements in 
Australia, our team of experienced family lawyers can provide you with the 
support and tailored advice you need.
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Justice Family Lawyers
THANK 
At Justice Family Lawyers, we prioritise clarity in all our services. We are here to provide 
the legal clarity you need to make informed decisions and prevent unnecessary legal 
Y issues.www.juOsticefamilylaUwyers.com.!
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