Australia does not have “prenups” in the American sense, but it has something with real teeth: the binding financial agreement (BFA). Made before, during or after a marriage or de facto relationship, a properly executed BFA can determine how property and maintenance are dealt with if you separate, and can keep your matter out of court entirely.
What a BFA can do
Quarantine assets you brought into the relationship, protect an expected inheritance or the family business, define how future property will be divided, and deal with spousal maintenance. For blended families and second marriages, a BFA is often less about distrust and more about certainty: protecting children from a first marriage, or two established people keeping their affairs their own.
What makes it binding, and what breaks it
The formalities are strict and non-negotiable: both parties must receive independent legal advice from separate lawyers about the agreement’s effect on their rights, with signed statements of advice. Courts can set BFAs aside for non-disclosure, duress or unconscionable conduct (the agreement presented on the eve of the wedding is the classic example), fraud, or where circumstances have changed so materially, often around children, that enforcement would cause hardship. A cheap template BFA without genuine advice is close to worthless; the certainty you are buying comes entirely from doing it properly.
BFA or consent orders?
For couples who have already separated and agree, consent orders are usually cheaper, simpler and more robust, because the court checks the deal is just and equitable. The BFA’s unique power is forward-looking: it is the only way to agree on outcomes before a relationship ends, and one of the few ways to contract out of spousal maintenance. Many couples use consent orders for the split and never need a BFA at all.
Frequently asked questions
When should a prenup-style BFA be signed?
Months before the wedding, not weeks. Pressure and poor timing are among the most common reasons agreements get set aside later.
Can a BFA be updated?
Yes, by terminating and replacing it with a new agreement with the same formalities, sensible after major events like children or a business sale.
Are BFAs worth the cost?
Where there is a real asymmetry to protect, established wealth, a business, an inheritance, children from a prior relationship, usually yes. The cost of a good BFA is a rounding error against the litigation it can prevent.
Thinking about protecting what you have built?
We prepare and review BFAs and advise on whether one actually fits your situation, or whether simpler tools do the job. A 90-minute consultation gives you the honest answer. Use the enquiry form just below, or call (02) 4210 9288. Garrison Lawyers acts for clients across Wollongong, Shellharbour, Kiama, the Illawarra and the Shoalhaven.
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This article is general information only, current at the date of publication. It is not legal advice and does not take your circumstances into account. For advice about your situation, speak with a family lawyer.