Postnuptial Agreement Template

What is a postnuptial agreement?

A postnuptial agreement is a binding financial agreement (BFA) made under section 90C of the Family Law Act 1975 (Cth). It is made during a marriage and allows married couples to set out how their property, finances, and superannuation will be divided if they separate.

Unlike a prenuptial agreement, which is signed before the wedding, a postnuptial agreement is entered into after the marriage has already taken place. It takes effect immediately upon signing, provided both parties have received proper independent legal advice and the agreement meets all statutory requirements.

A postnuptial agreement is sometimes referred to as a "postnup" or a "during-marriage financial agreement." Despite the different name, it operates under the same legal framework as a prenuptial agreement - the only distinction is the timing. Both are governed by Part VIIIA of the Family Law Act 1975 and carry the same legal weight when properly executed.

Why make a postnuptial agreement?

There are many reasons why married couples choose to formalise their financial arrangements after the wedding. A postnuptial agreement is particularly valuable in the following situations:

• You did not get a prenuptial agreement before the wedding - whether due to time pressure, uncertainty, or simply not having considered it - and now want the same protection a prenup would have provided.
• Your circumstances have changed significantly since you married. This might include receiving an inheritance, starting or growing a business, purchasing investment property, or a substantial increase in one partner's wealth.
• You want to protect a new business or investment venture from being included in the shared asset pool if the marriage breaks down.
• One spouse is expecting or has recently received a large inheritance and both parties agree it should remain separate property.
• You want certainty about how your finances would be handled on separation, avoiding the emotional toll, delay, and substantial cost of Family Court proceedings.
• This is a second or subsequent marriage and one or both parties have existing assets, children from a prior relationship, or financial obligations they want to protect.

Without a binding financial agreement, the Family Court has broad discretion under the Family Law Act to divide your property in a way that may not reflect what you and your spouse would have agreed to. A postnuptial agreement puts you in control of that outcome.

What does a postnuptial agreement cover?

A s90C postnuptial agreement can address a comprehensive range of financial matters. Our template covers the key areas most relevant to married couples:

• How existing marital assets will be divided between the parties on separation
• Property acquired during the marriage - including the family home, investment properties, and jointly held assets
• Superannuation entitlements and how they will be split or retained by each party
• Spousal maintenance - whether it will be payable and, if so, the amount and duration
• Business interests and company shares, including interests in partnerships, trusts, and corporate structures
• Debts and liabilities - including mortgages, personal loans, credit card debt, and tax obligations
• The treatment of future assets, including how property or wealth acquired after the agreement is signed will be dealt with

Requirements for a valid s90C agreement

For a postnuptial agreement to be legally binding under the Family Law Act 1975, it must comply with several strict statutory requirements. If any of these requirements are not met, a court may declare the agreement void or set it aside under section 90K. The key requirements are:

• In writing and signed: The agreement must be a written document signed by both parties. Oral or informal arrangements are not enforceable as binding financial agreements under the Act.
• Independent legal advice: Both parties must receive independent legal advice from separate lawyers before signing. Each party must have their own lawyer - the same solicitor cannot advise both spouses.
• Signed lawyer certificates: Each lawyer must sign a certificate in accordance with section 90G of the Act, confirming that they have advised their client about the effect of the agreement on their rights and the advantages and disadvantages of entering into it.
• Full and frank financial disclosure: Both parties must make honest and complete disclosure of their financial circumstances, including all assets, liabilities, income, and financial resources. Non-disclosure is one of the most common grounds for an agreement being set aside.
• Not terminated or set aside: The agreement must not have been previously terminated by the parties or set aside by a court order.

Independent legal advice is a mandatory requirement - not optional. If you need affordable ILA, our panel of lawyers can assist both parties at a competitive fixed fee.

Postnuptial vs prenuptial agreement

The difference between a postnuptial agreement and a prenuptial agreement is straightforward: timing. A prenuptial agreement is made under section 90B of the Family Law Act and is signed before the marriage takes place. It takes effect when the couple marries. A postnuptial agreement is made under section 90C and is signed during the marriage. It takes effect immediately upon execution.

Both types of agreement are equally valid and enforceable under the Family Law Act. They are subject to the same requirements for independent legal advice, signed lawyer certificates, and full financial disclosure. The protections they offer are identical.

If you missed the opportunity to sign a prenuptial agreement before your wedding, a postnuptial agreement gives you the same level of protection. There is no legal disadvantage to making a financial agreement after the marriage has taken place rather than before.

If you are not yet married and want to put an agreement in place before the wedding, see our prenuptial agreement template.

Postnuptial vs cohabitation agreement

A postnuptial agreement under section 90C is designed exclusively for married couples. A cohabitation agreement under section 90UC is the equivalent agreement for de facto couples - those who are living together in a relationship but are not legally married.

The two agreements serve the same purpose but operate under different parts of the Family Law Act. A s90C agreement falls under Part VIIIA (married couples), while a s90UC agreement falls under Part VIIIAB (de facto couples).

If you were in a de facto relationship before getting married, any s90UC agreement you made during that time continues to have legal effect. However, you may wish to enter into a s90C postnuptial agreement as well to ensure your financial arrangements are clearly governed by the provisions that apply to married couples. This is particularly important if your financial circumstances have changed since the original agreement was made.

If you are in a de facto relationship rather than a marriage, see our cohabitation agreement template.

Superannuation in a postnuptial agreement

Superannuation is one of the most significant financial assets for many Australian couples, and it can be dealt with in a s90C postnuptial agreement. Our Postnuptial + Super Clause tier includes specific superannuation splitting provisions that allow you to address how each party's super entitlements will be treated on separation.

Including a superannuation clause is particularly important if there is a significant difference in the superannuation balances of each spouse. This often occurs when one partner has taken time out of the workforce to raise children, or where one spouse has a substantially higher income and has accumulated a larger super balance over the course of the marriage.

When superannuation is dealt with in a binding financial agreement, the super fund trustee must be served with a copy of the agreement. This ensures the fund is aware of the arrangement and can give effect to any splitting or flagging orders contained in the agreement.

If you need to include superannuation splitting, choose our "+ Super Split" tier which includes the necessary clauses.

Can a postnuptial agreement be set aside?

Yes. Under section 90K of the Family Law Act 1975, a court has the power to set aside a binding financial agreement in certain circumstances. Even a properly executed agreement can be overturned if the court finds sufficient grounds. The most common grounds include:

• Fraud: One party engaged in fraudulent conduct in connection with the making of the agreement, such as hiding assets or providing deliberately false financial information.
• Non-disclosure of material assets: A party failed to disclose significant financial information - including assets, debts, income, or financial resources - before the agreement was signed.
• Duress or undue influence: One party was pressured, threatened, or unduly influenced into signing the agreement against their genuine wishes.
• Void, voidable, or unenforceable: The agreement is found to be void, voidable, or unenforceable under general principles of contract law - for example, if a party lacked legal capacity to enter into it.
• Material change in circumstances: There has been a significant change in circumstances since the agreement was made - particularly relating to the care, welfare, or development of a child of the marriage - that makes the agreement impracticable or unjust.
• Unconscionable conduct: The agreement was obtained through conduct that was unconscionable or grossly unfair in all the circumstances.

The best protection against your agreement being set aside is to ensure both parties make full and frank financial disclosure, obtain genuine independent legal advice from separate lawyers, and enter into the agreement freely and voluntarily. Our template includes detailed guidance on meeting each of these requirements.

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