Updated by: Taylor Wilson on 11/03/2025
The idea of a “prenup” rose in popularity thanks to American movies and television. In Australia, the word ‘prenup’ is known as a Binding Financial Agreement (BFA) under the Family Law Act 1975.
Prenuptial Agreement = Binding Financial Agreement
A ‘Pre-Nuptial Agreement’ or binding financial agreement is a document which allows a couple to plan their future rights and responsibilities.
BFAs are entered into and signed by both parties, having had legal advice upon their advantages and disadvantages.
Although it’s common for couples to enter a prenup before marriage, a binding financial agreement can also be entered into post-separation, to finalise a property settlement.
However, the document must address a number of criteria set out in the Family Law Act 1975 if it is to be legally binding.
What Makes a Prenup Legally Binding?
For a binding financial agreement to be enforceable by law…
- The document must be in writing and signed by all parties.
- Each party must obtain independent legal advice from a qualified solicitor and have a certificate of legal advice signed by the solicitor, confirming they have provided all of the requisite advice.
- The agreement must be entered into voluntarily, free from coercion or duress.
- Each party must provide full and frank disclosure of their financial circumstances.
- The agreement must be properly executed
- The agreement must refer to the correct section of the Family Law act as the authority under which it is made.
- It must not include parenting arrangements of child support agreements; it must only deal with financial matters.
Why More Australians are Considering Prenups
There’s been a noticeable rise in the number of Australians seeking prenuptial agreements, with many couples now considering financial protection before tying the knot.
The ABC reports this shift as being driven by factors like:
- Skyrocketing housing costs
- Increased economic uncertainty
- More blended families
Housing Costs
Younger Australians, particularly those in their late twenties and early thirties, are increasingly relying on family support to get into the property market, which has raised awareness around protecting assets.
Economic Uncertainty
With the Australian economy subject to fluctuations such as changes in property markets, inflation, and shifts in employment patterns, individuals may feel the need to safeguard assets accumulated before or during the marriage.
Blended Families
Blended families, who may have already faced the challenges of separation, are also opting for prenups to secure their financial interests and those of their children.
How Much Do Binding Financial Agreement Cost?
The cost for a binding financial agreement varies depending on the firm and your location. For example, at Greenhalgh Pickard in Queensland, our standard fee estimates for a Binding Financial Agreement are $5,000 – $10,000.
Remember, a properly drafted BFA can save you up to hundreds of thousands of dollars in legal fees if your relationship breaks down and your property becomes contested.
Taking a risk on a poorly drafted or cheap BFA can cost you more than it’s worth in the long run. A good BFA is like home insurance – you get it when things are good, to protect you when things are not.
To protect your property interests so far as possible, you’ll want to make sure it’s done right. This will also minimise the possibility of your binding financial agreement being overturned in the future.
Can I Get a Prenup if We’re Already Married?
Yes – you can enter into a binding financial agreement during your marriage. BFAs can be contentious, so we usually recommend that the document be entered into prior to the marriage.
If you do not do it prior and enter into a marriage that eventually breaks down, there’s little recourse available to escape a property settlement process.
If you are going to do it, do it early and with enough time for signatures to dry before you walk down the aisle.
Can We Make Our Prenup Without a Lawyer?
No – you cannot make a prenup without a lawyer.
In order for a binding financial agreement to be ‘binding’, both of the parties must have had independent legal advice. It is not sufficient for just one of the parties to have legal advice. A professional family lawyer will ensure your BFA is designed to protect your interests.
Disclaimer:
The information contained in this article is for general informational purposes only and is not intended to provide legal advice or substitute for the advice of a professional. This information does not consider your personal circumstances and may not reflect the most current legal developments. Should you need advice, please contact our firm for targeted information relating to personal your situation.
Greenhalgh Pickard’s Family Law Team
