What is a prenuptial agreement?

Article updated 08/06/2026

Key takeaways

• A prenup is legally known as a financial agreement or BFA in Australia. It lets couples decide in advance how assets, debts and financial resources are divided if they separate.
• Prenups are smart financial planning for any couple wanting clarity and protection from the start.
• You can enter a BFA before, during or even after a relationship, and a postnup can be just as valuable as a prenup.
• To be binding, a BFA must be in writing, signed by both parties, and each party must receive independent legal advice beforehand.
• A BFA can cover property, superannuation, investments, businesses, inheritances, liabilities, spousal maintenance and even family pets.
• A court can set aside a BFA in certain situations, such as fraud, non-disclosure, duress, or a material change in circumstances affecting a child.
• A prenup can’t cover everything. Parenting arrangements and child support fall outside its scope.

Most of us have heard the word ‘prenup’, even if we don’t fully understand the meaning of the term. Maybe you heard it on an American drama, read about it in a gossip blog or saw a reference on social media.

But the Australian version of a prenup is different to what we often see on TV, though it does serve similar purposes. And if you’re in a serious relationship, recently engaged or even already married (because a postnup can be a great idea), this deep dive into prenuptial agreements is vital reading.

Here’s what a prenup means in Australia, the law behind it, what it covers and who should consider getting one (and this might surprise you). We’ll also touch on the major pros and cons, how much a prenup costs and where to start in your prenup journey.

What is a prenup? 

While the term ‘prenup’ is most common in casual conversation, the legal term for these types of arrangements in Australia is a financial agreement (BFA).

BFAs are essentially a legal contract that allows you and your partner to decide in advance how you would want your assets, debts and financial resources divided if you separate at any point in the future, so you will not be subject to any court order dividing your assets. It’s created and signed by both partners, with certain legal advice required. While typically this happens before marriage, you can also enter into a BFA during or after a relationship, and there are many good reasons to do so.

Prenups can also be updated through a replacement BFA and should be as the couple’s circumstances change, for example, if you acquire new investments, gain or lose jobs, receive inheritances or have children.

Are prenups legal in Australia?

Yes, prenups/BFAs are legal in Australia as long as they meet the requirements of Part VIIIA of the Family Law Act 1975 for married couples or Part VIIIAB for de facto couples. Simply calling an agreement a BFA won’t be enough if it doesn’t meet specific rules.

Your BFA is binding if:

• It’s signed by all parties
• Each party received independent legal advice prior to signing
• It’s in written form and properly executed 

A court can also set aside or end a BFA in certain situations, including if:

• It was obtained by fraud, including non-disclosure, duress or unconscionable conduct 
• It’s void or unenforceable
• A change in circumstances has made it impracticable to be carried out
• One party would suffer hardship that arose from a material change in circumstances relating to care of a child of the relationship as a result of the enforcement of the Agreement
• There is no certificate of independent legal advice

What does a prenup cover? 

A BFA can cover a wide range of assets and liabilities, and what’s included will depend entirely on your personal situation. But some of the things that BFAs typically cover are:

• Property, e.g., real estate, vehicles, personal assets, items of value
• Financial resources, e.g., shares, trusts, investments
• Superannuation
• Income
• Business/es
• Inheritance/s
• Liabilities 
• Family pets/companion animals 
• Spousal maintenance 

A note about superannuation

Superannuation is a special class of asset and doesn’t always work the same way as other assets when a relationship ends. While it’s often part of the property pool, there are some situations where it can’t be split at the time of property division. 

Instead, the court might require a superannuation splitting order or a superannuation agreement that will require that a proportion of that super account be given to the other party at a certain time (typically when the account holder reaches retirement age). 

Who should consider a prenup?

There’s a widespread myth that prenups exist for the excessively wealthy. But this simply isn’t true.

Prenups are a clear, effective way to lay the groundwork for dividing assets and liabilities should your relationship break down. But it’s also a great way to bring confidence into a relationship from the start, eliminating any worries or concerns about what the future might hold. All in all, it’s smart financial planning that reduces the emotional turmoil and red tape at a potentially difficult time in your later life. 

As family law experts with a wealth of experience, we’ve seen first-hand the difference that having a BFA can make. We recommend that all couples take the time to have an open conversation about their current and future financial situation while they’re feeling calm and rational. Negotiating these heavily loaded topics when you’re feeling emotional and angry during a separation or divorce can make the situation far harder for everyone.

Pros and cons of a prenup

There are many benefits to BFAs, but there are some potential negatives that you should consider as well. 

Pros of a prenup

• You can protect assets such as inheritances and businesses.
• Couples can retain control over the division of their assets and debts – not leave it up to the courts.
• An enforceable BFA is likely to reduce legal costs in the long term.
• It can help keep your financial information private and out of a public courtroom.
• Parties have a rational space to effectively identify and communicate their needs and wants.
• It reduces the risk of malicious behaviour between ex-partners should the relationship break down.
• You can protect assets and inheritances for your children and grandchildren.
• Gives you peace of mind for the future.

Cons of a prenup

• A BFA doesn’t allow for a change of heart or regret after signing (unless agreed to by both parties).
• You may void your right to additional spousal support or other assets.
• Some partners might be offended by a request for a prenup.
• There are certain parts of a separation or divorce that can’t be covered in a prenup, for example, parenting arrangements and the payment of child support.
• It’s not 100% guaranteed to be binding – it may be challenged or considered void, particularly if you go on to have children together.
• Requires payment of legal fees upfront.

How much does a prenup cost in Australia?

The cost of establishing an enforceable BFA will depend on your personal circumstances. More complex assets and liabilities, such as international investments or complicated trust structures, will require greater care and more detail, so that could mean a higher cost to prepare. 

It’s important to keep in mind that although you’ll need to pay legal fees to establish a prenup, it’s likely to save a lot of time, money and energy in the long run. A well-executed BFA can greatly minimise time spent in the courts, which can be expensive.

Ready to get started?

BFAs or prenups are not only for the wealthy or unromantic. They’re incredibly helpful for any married or de facto couple at any point in their relationship. In fact, we believe establishing a prenup before marriage is one of the smartest financial decisions a couple can make. 

We highly recommend getting in touch with a trusted family law expert to help protect your financial future. Australian Family Lawyers have years of experience supporting clients to create their ideal prenup. We can help you secure the best possible outcome and ensure the agreement is legally sound.

Call the team at 1300 470 243 or request a callback via the form below.

FAQs

Is a prenup the same as a financial agreement (BFA)?

Yes. A financial agreement is simply the legal term used in Australia.

Can you get a prenup if you’re already married?

Yes. You can establish a BFA at any stage of your relationship – before you’re married, during the marriage and even after the relationship has broken down. Reach out to our team to discuss how we can support you.

What happens if we don’t have a prenup?

If your relationship breaks down and you don’t have a BFA, you can expect the normal and sometimes lengthy legal process. In the case of a separation or divorce, you’ll need to engage a lawyer and attempt to negotiate with your ex-partner. This can lead to high legal costs, drawn-out court proceedings and further emotional strain.

Do both of us need a lawyer?

Yes. Both parties must seek independent legal advice and have their lawyer sign a statement of independent legal advice to ensure a BFA is legally binding.