Key elements for a prenuptial agreement in Australia

19 August 2024

By Nicola Watts

As couples plan their dream wedding, it’s crucial to have open and honest conversations about finances and legal protections.

One way to safeguard both parties’ interests is by entering into a financial agreement (often colloquially referred to as a prenuptial agreement).

For a financial agreement to be binding, it must adhere to specific criteria set out in Australian family law legislation and case law.

Financial disclosure

Transparency is paramount when drafting a prenuptial agreement. Both parties must disclose their assets, liabilities, income, and financial resources to each other. Failure to provide disclosure can result in the financial agreement being set aside.

Independent legal advice

To ensure that each party fully understands the implications and fairness of the financial agreement, they must be provided with independent legal advice from separate lawyers about the effect of the financial agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement. These lawyers must certify in writing that they have provided the advice to their respective clients.

Written agreement and proper execution

A prenuptial agreement must be in writing and signed by both parties in the presence of witnesses. This formal execution is a legal requirement.

Entered into voluntarily

Both parties must enter into the agreement voluntarily, without any fraud, duress, or unconscionable conduct such as coercion or undue pressure. Any evidence of improper conduct can render the agreement invalid.

Consideration of future events

A well-drafted prenuptial agreement should consider and account for potential future events that may impact the parties’ financial situation, such as having children, changes in employment or income, or the acquisition of new assets or liabilities.

Compliance with legal requirements

The prenuptial agreement must comply with all relevant sections of the Family Law Act 1975. Failure to adhere to legal requirements can result in the financial agreement being set aside.

By following the proper legal procedures, couples can increase the likelihood that their prenuptial agreement will be determined to be binding and enforceable by Australian courts.

Contact us now to speak with our family law experts and ensure that your financial agreement is tailored to your specific circumstances and meets all legal requirements.