Prenuptial agreements

Prenuptial agreements are known as financial agreements. Financial agreements can be made before, during, or after a relationship ends.

The Family Law Act 1975 (Cwlth) allows married and de facto (including same-sex) couples to make legally binding financial agreements about their property.

Property can be divided between you and your ex-partner according to the financial agreement if your relationship ends.

What do agreements cover?

Financial agreements can cover:

• how a couple's assets and money will be divided
• the financial support (maintenance) of either party (during the marriage and/or after divorce)
• any other incidental issues particular to you and your relationship.

Are agreements binding?

Certain conditions must be met before your financial agreement can be legally binding.

You and your partner must both sign it, and your lawyers must sign a separate statement advising that they provided independent legal advice on:

• how the agreement will affect each person's rights

  and

• the advantages and disadvantages to the person at the time the advice is provided
• whether the agreement is fair for both parties.

A spouse also has the right to challenge a legally binding agreement.

Family Law Courts may set aside (dismiss) an agreement under section 90K of the Commonwealth’s Family Law Act 1975.

Contact Family Law Courts on 1300 352 000 for more information.

Time limits

There are time limits that affect agreements. You must apply to the Family Law Courts:

• within 1 year from the date your divorce order has taken effect
• within 2 years from the date your de facto relationship ended.

Cancel or change an agreement

Couples can agree to change or cancel an agreement. If your partner does not agree, you must prove:

• there was a fraud (dishonesty)
• the agreement is not practical to carry out (not just inconvenient)
• the other person has acted in an unethical or unfair way
• it is in the interests of creditors.

Informal agreements

Couples may choose to have an informal agreement, which can be written or unwritten.

Informal agreements are not recommended as they are not legally binding (enforceable) by a court. However, they can be taken into account (considered) by a court when it makes a decision.

An informal agreement can only be made binding by:

• having it made into a consent order—a written agreement between ex-partners that is approved by the Family Law Courts. Consent orders can also be used to formalise child custody arrangements.
• making a financial agreement.

Legal advice

It is highly recommended that you get legal advice if you:

• are considering signing a financial agreement or consent order
• need to change or cancel an existing financial agreement or consent order.

The Queensland Law Society (phone 1300 367 757) can refer you to specialist lawyers.

Who else can help?

Family Relationship Advice Line (phone 1800 050 321) provides information about the family law system in Australia.

The Federal Circuit Court of Australia (previously called the Federal Magistrates Court of Australia), looks after matters including family law, child support, divorce and court processes and forms.

Disclaimer

The contents of this page are a guide only and are not intended to be a complete statement of law on any subject. They should not be used as a substitute for legal advice on specific situations.