Prenuptial agreements (BFAs) in Australia: are they enforceable – 2026 AU guide
In Australia, prenuptial agreements are called Binding Financial Agreements (BFAs) and are governed by the Family Law Act 1975. They can be legally enforceable, but only when strict procedural and substantive requirements are met – making independent legal advice and careful drafting essential.
What is a Binding Financial Agreement (BFA)?
When Australians talk about a "prenuptial agreement," they are almost always referring to a Binding Financial Agreement, commonly known as a BFA. These documents are created under the Family Law Act 1975, which sets out the rules governing how couples – whether married or in a de facto relationship – can contractually arrange their financial affairs.
A BFA can be made before a relationship begins, during the relationship, or after separation. The "prenuptial" version is simply a BFA signed before marriage or before a de facto couple begins living together. It can cover the division of property, financial resources, and spousal maintenance if the relationship breaks down.
Unlike consent orders approved by the Federal Circuit and Family Court of Australia, a BFA does not require court approval to take effect. This makes the drafting process and independent legal advice especially important, since there is no judicial oversight acting as a safety net.
Are BFAs actually enforceable in Australia?
The short answer is: yes, but conditionally. A BFA is only binding if it satisfies the requirements set out in sections 90B to 90KA (for marriages) and sections 90UB to 90UJ (for de facto couples) of the Family Law Act 1975.
Courts have the power to set aside a BFA in a range of circumstances, including where:
- One party was not provided with independent legal advice before signing - The agreement was obtained through fraud, duress, or undue influence - There has been a material change in circumstances, particularly where a party would suffer serious hardship if the agreement were enforced - The agreement is uncertain, ambiguous, or was not signed correctly - A party failed to disclose a material matter at the time of signing
Australian courts have set aside BFAs on these grounds on multiple occasions, which underlines just how technical these documents can be. A BFA that looks thorough on its face may still be challenged successfully years later if procedural requirements were not meticulously followed at the time.
The independent legal advice requirement
One of the most critical requirements under Australian law is that each party must receive independent legal advice before signing a BFA. This means each person must have their own separately instructed lawyer -- not the same solicitor acting for both parties.
The advice provided must specifically cover the effect of the agreement on the rights of that party, and the advantages and disadvantages of entering into the agreement at that time. After providing this advice, each lawyer must sign a certificate confirming they have done so, and that certificate must be exchanged between the parties.
If independent legal advice was not obtained, or the certificate was not properly signed and exchanged, the BFA is at risk of being declared unenforceable. This is not a technicality courts overlook lightly. For guidance on finding qualified practitioners, see our best family lawyers in Sydney directory listing, or explore options in your state through the Law Council of Australia.
What can and cannot be included in a BFA?
BFAs offer genuine flexibility in structuring financial arrangements. They can include provisions relating to:
- The division of assets and liabilities accumulated before the relationship - Property brought into the relationship by each party - Future inheritances or gifts, if clearly identified - Spousal maintenance arrangements - Business interests and investments
However, there are important limitations. A BFA cannot override child support obligations under the Child Support legislation, and any provisions purporting to limit a court's power to make parenting orders will be ineffective. Courts remain focused on the best interests of any children involved, and no private agreement can entirely remove that judicial discretion.
A BFA also cannot include arrangements that are illegal or contrary to public policy. Any provision that appears designed to defraud creditors, for example, may render the entire agreement liable to be set aside.
How much does a BFA cost in Australia?
The cost of preparing a BFA varies considerably depending on the complexity of the parties' financial circumstances, the experience of the lawyers involved, and the state or territory in which you are located. There is no fixed statutory fee.
In general terms, BFAs tend to cost more than standard consent orders because they require two separately engaged lawyers and careful drafting that must anticipate future scrutiny. Both partners need to budget for their own legal fees, not just one shared expense.
For a detailed breakdown of what to expect when engaging a family lawyer, including fee structures and what questions to ask, see our cost guide. Legal Aid may also be able to assist in certain circumstances -- the National Legal Aid website can direct you to your state or territory service to check eligibility.
When should you consider a BFA?
A BFA may be worth considering in a range of situations, including where:
- One or both partners have significant pre-existing assets, business interests, or debts - Either party has children from a previous relationship and wants to protect their inheritance - There is a significant difference in the financial positions of the two parties - One partner expects to receive a substantial inheritance - Either party has previously been through a costly or difficult property settlement
There is no perfect time to have the conversation about a BFA, but starting well before a wedding or the formal commencement of a de facto relationship allows both parties adequate time to seek independent advice without feeling pressured. Courts have been willing to set aside agreements where the circumstances suggest one party felt they had no real choice but to sign close to a wedding date.
How to get a BFA right
Given the complexity of the requirements and the consequences of getting them wrong, the following steps are generally recommended:
1. Engage a family lawyer experienced in BFAs as early as possible 2. Ensure your partner independently engages their own separate lawyer 3. Make full financial disclosure to each other before signing 4. Allow sufficient time for both parties to consider the agreement without pressure 5. Ensure all certificates of independent legal advice are properly signed and exchanged 6. Review the agreement periodically, particularly after major life events
Our methodology page explains how we assess and list family law practitioners, if you would like guidance on choosing a qualified professional.
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Frequently asked questions
Q: Can a BFA be made after we are already married? Yes. The Family Law Act 1975 allows financial agreements to be made during a marriage, not only before it. These are sometimes called "marital agreements" rather than prenuptial agreements, but they are subject to the same legal requirements. Q: Does a BFA override what the Family Court would normally decide? A valid and enforceable BFA removes the court's jurisdiction to make property settlement or spousal maintenance orders covering the matters addressed in the agreement. However, a court can still set the BFA aside if the grounds for doing so are established. Q: Are de facto couples able to use BFAs? Yes. Couples in de facto relationships, including same-sex couples, can enter into BFAs under the Family Law Act 1975. The specific provisions differ slightly from those applying to married couples, so it is important your lawyer advises you on the correct sections applicable to your situation. Q: What happens if we move interstate or overseas after signing a BFA? This is an area where legal advice is particularly important. The Family Law Act applies nationally across Australia, but international recognition of BFAs is not guaranteed. If you plan to live or hold assets overseas, your lawyer should consider how your agreement may be treated in other jurisdictions.---
Sources
- Federal Circuit and Family Court of Australia - Family Law Act 1975 (Cth) - National Legal Aid -- state and territory services - Law Council of Australia -- state and territory law societies and bar associations
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Information in this article is general only and not legal advice. Verify the details with the linked sources or an appropriately qualified Australian professional before relying on them.
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