Prenuptial Agreement Template

What is a prenuptial agreement in Australia?

A prenuptial agreement in Australia is a binding financial agreement (BFA) made under section 90B of the Family Law Act 1975 (Cth). It is entered into before the parties marry and sets out how property, finances, and superannuation will be divided if the marriage later breaks down.

While commonly referred to as a "prenup," the legal term under Australian law is a binding financial agreement. Unlike American-style prenuptial agreements, Australian prenups are governed entirely by the Family Law Act and do not require court approval to take effect. Instead, they must satisfy strict requirements around independent legal advice and proper execution.

A s90B agreement takes effect once the marriage occurs. If the parties do not go on to marry, the agreement has no legal effect. This distinguishes it from a pre-cohabitation agreement under s90UB, which covers de facto relationships, and from a postnuptial agreement under s90C, which is made during the marriage.

Why get a prenuptial agreement?

A prenuptial agreement gives both parties certainty about their financial position in the event of a separation. Without one, a court has broad discretion to divide property in a way that may not reflect what either party expected. There are several common reasons couples enter into a prenup:

• Protect pre-marital assets - if you own property, have savings, investments, or a business before the marriage, a prenup can ensure those assets remain yours.
• Protect inheritance or family wealth - assets received as an inheritance or gift from family members can be ring-fenced so they are not included in a property division.
• Keep debts separate - if one party has existing debts, the agreement can specify that each party remains responsible for their own liabilities.
• Provide certainty and avoid costly court proceedings - agreeing on financial terms in advance avoids the expense, stress, and uncertainty of a court-determined property settlement.
• Second marriages or blended families - if you are entering a second marriage and want to protect assets for children from a previous relationship, a prenup is essential.
• Business protection - if you have built a business, a prenup can protect your business interests and prevent disruption in the event of a marriage breakdown.

What does a prenuptial agreement cover?

A prenuptial agreement under s90B can address a broad range of financial matters. Our template covers the following:

• Assets each party brings into the marriage
• How jointly acquired property will be divided
• Real estate and the family home
• Superannuation
• Spousal maintenance
• Business interests and partnerships
• Debts and liabilities
• Gifts and inheritance

By addressing these matters before the marriage, both parties enter the relationship with a shared understanding of their financial rights and obligations. The agreement provides a clear framework for what happens if the relationship does not work out, which reduces the risk of drawn-out and expensive litigation.

Requirements for a valid s90B agreement

For a prenuptial agreement to be legally binding under section 90B, it must satisfy several strict requirements set out in the Family Law Act:

• The agreement must be in writing and signed by both parties before the marriage.
• Both parties must receive independent legal advice (ILA) from separate lawyers. Each party must consult their own lawyer - the same lawyer cannot advise both parties.
• Each lawyer must provide a signed statement under section 90G, confirming that they gave advice about the effect of the agreement on the rights of that party, and the advantages and disadvantages of entering into the agreement.
• The agreement takes effect only when the parties marry. If the marriage does not go ahead, the agreement has no legal effect.
• Full financial disclosure is essential. Both parties must provide honest and complete information about their financial position. Failure to disclose material assets is one of the most common grounds for a court to set the agreement aside.

Independent legal advice is the most common point of failure. If you need affordable ILA, visit our lawyers page for options.

Prenup vs postnup - what's the difference?

Both prenuptial and postnuptial agreements are binding financial agreements under the Family Law Act, but they differ in timing:

• A prenuptial agreement (s90B) is made before the marriage and takes effect when the parties marry.
• A postnuptial agreement (s90C) is made during the marriage and takes effect immediately upon execution.

Both agreements serve the same fundamental purpose - setting out how property and financial resources will be divided if the marriage breaks down. The difference is purely one of timing. If you are already married and did not enter into a prenup before the wedding, a postnuptial agreement provides the same level of protection.

You can view our postnuptial agreement template if you are already married and looking to formalise your financial arrangements.

Prenup vs pre-cohabitation agreement

If you and your partner are living together before marriage, it is important to understand the difference between a prenuptial agreement and a pre-cohabitation agreement:

• A pre-cohabitation agreement (s90UB) covers the de facto period - the time you spend living together before marriage.
• A prenuptial agreement (s90B) only covers the marriage period. It does not apply to the de facto relationship that preceded the marriage.

If you are currently living together and planning to marry, you may need both agreements to ensure you are fully covered from day one. Our Prenup + Pre-Cohab Bundle combines the s90B and s90UB templates so that both the de facto period and the marriage are protected under a single purchase.

You can also view our standalone pre-cohabitation agreement template.

Can a prenuptial agreement be set aside?

Yes. Under section 90K of the Family Law Act, a court may set aside a binding financial agreement in certain circumstances. The grounds on which a court may set aside a prenuptial agreement include:

• Fraud - if one party was induced to enter the agreement by fraud, including non-disclosure of a material matter.
• Failure to disclose material assets - if a party did not provide full and frank disclosure of their financial position before the agreement was signed.
• Duress, unconscionable conduct, or undue influence - if one party was pressured, coerced, or unfairly influenced into signing.
• Void or unenforceable - if the agreement is void, voidable, or unenforceable for any reason under general contract law principles.
• Material change in circumstances - particularly where a child of the marriage would suffer hardship if the agreement were enforced as written.

This is why full financial disclosure and proper independent legal advice are critical. An agreement that is entered into transparently, with both parties fully informed, is far more likely to withstand challenge.

Are prenups enforceable in Australia?

Yes, prenuptial agreements are enforceable in Australia when they are properly executed in accordance with the Family Law Act. However, enforceability depends on compliance with the statutory requirements and the circumstances in which the agreement was made.

The High Court of Australia addressed the enforceability of financial agreements in Thorne v Kennedy (2017), a landmark case that set important precedents about duress and unconscionability. In that case, the court set aside a prenuptial agreement because the wife had been under significant pressure to sign, had limited English, and had been told the wedding would be called off if she did not agree to the terms. The key factors the court considered included:

• Whether both parties had adequate time to consider the agreement and its terms.
• Whether there was any pressure or ultimatum to sign, particularly close to the wedding date.
• Whether each party received genuine independent legal advice - not just a certificate, but substantive advice they understood.
• Whether the terms of the agreement were fair and reasonable in all the circumstances.

Our template is drafted to maximise enforceability by including comprehensive clauses, clear disclosure schedules, and guidance on proper execution procedures.

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