Prenuptial Postnuptial Agreement Template for Australia

A prenuptial or postnuptial agreement is a powerful legal tool that allows you to determine how your financial affairs will be handled before or during marriage. Under Australian law, these agreements are formally known as binding financial agreements and are governed by sections 90B-90KA of the Family Law Act 1975 (Cth). When properly executed, these agreements can override the usual property settlement provisions that would otherwise apply under family law.

When do you need this document?

You should consider a prenuptial or postnuptial agreement if you have significant assets to protect, own a business, expect to receive an inheritance, or are entering a second marriage. These agreements are particularly important for high-net-worth individuals, business owners, and those with complex financial arrangements. They're also valuable when there's a significant disparity in wealth between parties or when you want to protect family assets for children from previous relationships. Many couples also use these agreements to clarify financial responsibilities during marriage, such as how expenses will be shared and how future assets will be treated.

Key legal considerations

For your agreement to be legally binding, it must meet strict requirements under the Family Law Act. Both parties must receive independent legal advice before signing, and this advice must be certified by qualified legal practitioners. The agreement must include full and frank financial disclosure from both parties, covering all assets, liabilities, and financial resources. You'll need to clearly specify which assets remain separate property and which will be shared, address spousal maintenance arrangements, and consider how future assets acquired during marriage will be treated. The agreement must be signed by both parties and their legal advisors, with proper witnessing requirements met.

Legal requirements in Australia

Under the Family Law Act 1975, your prenuptial or postnuptial agreement must satisfy several mandatory requirements to be enforceable. Each party must receive independent legal advice about the effect of the agreement on their rights, the advantages and disadvantages of making the agreement, and whether it's prudent to enter into it. This advice must be provided by different lawyers for each party. The agreement must be in writing and signed by both parties in the presence of witnesses. Additionally, you must attach certificates from each lawyer confirming they provided the required independent legal advice. The agreement can be set aside by a court if it was obtained through fraud, duress, or if circumstances have changed dramatically since it was made, making it unconscionable to enforce.