You’ve moved in together. Maybe there is a wedding on the horizon. You are splitting the rent, sharing a streaming account, building a life. Then someone at a barbecue says the word “prenup”, and that evening you keep wondering whether you should get one, whether you actually need one, and if you do, would it even hold up?
Let me give you a straight answer. In Australia lawyers don’t use the word prenup. The legal name is a binding financial agreement, or BFA. Same idea. And yes, a BFA is legally enforceable, as long as it is done properly. This page explains what it covers, what makes it binding, what it costs, how it compares to the alternatives, and when it is worth talking to a prenuptial agreement lawyer.
You have probably also heard the opposite: that prenups are not worth the paper they are written on. That is a myth, but it comes from somewhere real. Agreements do get thrown out, and almost always for the same reason: the strict rules were not followed. Get those right and the agreement almost always holds.
BFA vs consent orders vs an informal agreement
Most people sorting out their finances have three options, and it helps to see them side by side before we go further. A BFA is a private contract between the two of you, which can be made at any time before, during or after a relationship. Consent orders are approved and sealed by the court, but they can only be used when you are separating. An informal agreement is not legally binding, and that is the problem with making one.
| Binding financial agreement | Consent orders | Informal agreement | |
|---|---|---|---|
| What it is | A private contract between the two of you setting out how property and finances are divided | Your agreement written up and approved by the court | A handshake deal, or a document you sign between yourselves |
| Does a court sign off? | No. It stays private and never goes near a court | Yes. The court checks it is just and equitable, then seals it | No |
| When it suits | Before, during or after a relationship, when you want to set your own terms privately | After separation, when you want the certainty of a court order | Rarely a safe choice for anything that matters |
| How enforceable | Binding when the strict requirements are met; a court can still set it aside on limited grounds | Very strong, treated like any other court order | Not binding. If you later disagree, a court is not bound by it and decides the split itself |
If you want the court to formalise an agreement after you separate, consent orders are the usual path. If you don’t have a BFA in place and cannot agree on consent orders after a relationship ends, you’ll need to apply to the court to make a decision about your property settlement under the Family Law Act. A BFA lets you set those terms yourselves, in advance, avoiding making important decisions when both people are emotional.
What does a BFA cover?
A BFA deals with money and property. It can set out how you split your assets and debts if you separate: the house, savings, superannuation, a business, investments. It can also cover spousal maintenance, the ongoing financial support one partner might pay the other after a split.
What it cannot do is decide anything about your children. A BFA cannot set parenting arrangements and it cannot address child support. Those are handled separately, and the court keeps the final say on what is in a child’s best interests.
A BFA sits under the Family Law Act 1975 (Cth).
When can you make one?
You are not limited to signing before a wedding. You can make a BFA before you marry, during the marriage, or after a divorce. And you do not have to be married at all. Couples in a de facto relationship can make one too. So whether you are moving in with a new partner, already married, or sorting things out after a separation, there is a version that fits.
The timing rules sit in the Family Law Act: before marriage (s 90B), during a marriage (s 90C), after divorce (s 90D), with equivalent sections for de facto couples (s 90UB, 90UC and 90UD). They are set out on the court’s financial agreements page.
What makes a BFA legally binding?
This is the part that decides whether your agreement actually holds up, and it is where the do-it-yourself versions fall over. Three things have to happen:
- Each of you gets independent legal advice from your own separate solicitor before you sign.
- The agreement is in writing and signed by both of you.
- Each solicitor signs a certificate confirming they gave that advice.
Miss any one of these and the agreement can be worthless. That is the real reason a prenup fails in Australia. Not because prenups do not work here, but because the rules were not followed.
The binding requirements sit in s 90G (marriage) and s 90UJ (de facto) of the Family Law Act 1975 (Cth), and are set out on the court’s financial agreements page.
Can a BFA be terminated or set aside?
Two different things can bring a BFA to an end, and people tend to blur them.
The first is termination. The two of you agree to end the agreement yourselves, either by tearing it up together or by signing a new one that replaces it.
The second is a court setting it aside, and that is the one people worry about. A court can only do this on limited grounds: non-disclosure or fraud (someone hid assets), duress, undue influence or unconscionable conduct (someone was pressured into signing), or a significant change such as the birth of a child that makes the agreement impractical.
A court’s power to set an agreement aside sits in s 90K (marriage) and s 90UM (de facto). In Thorne v Kennedy [2017] HCA 49 the High Court set aside an agreement a woman had signed under pressure days before her wedding.
What does a BFA cost?
I will be honest with you, a BFA is not cheap, and that puts some people off. Because each of you need your own separate lawyer, a properly drafted agreement usually costs somewhere between $5,000 and $10,000.
It’s not cheap. You both need separate lawyers and a properly drafted prenup can cost anywhere between five to $10,000. This might be a financial barrier for a lot of people.
For the right situation, it is money well spent. Weigh it against what a drawn-out property dispute can cost, in legal fees and in months of stress, and the agreement starts to look cheap.
A real outcome from our practice
Let me tell you about a real client. We will call him Ben. Ben had a house he had bought on his own, paid off and renovated, before he met his new partner, Sarah. Sarah was about to move in, and Ben was quietly worried: if things did not work out, could he lose the home he had built up on his own?
So Ben came to us and we had some honest conversations. The agreement we landed on was simple:
We worked out a BFA that said the house would stay with Ben, but if Sarah was making contributions towards the house, they would take note of those contributions, and if they did separate she would be paid back those contributions plus a little bit extra as well.
Five years later, they did separate. But the money side was already sorted. There was no argument and no court, and both of them walked away calling it fair. That is what a BFA does when it is done properly. It turns a worst-case scenario into a clean one.
Who actually needs one?
A BFA is not just for the wealthy, and it is not a sign you expect the relationship to fail. It is most useful when:
- you are bringing more into the relationship than your partner, like a house, a business, or an inheritance
- you are marrying again and want to protect assets for children from an earlier relationship
- you simply want financial clarity, so you both know where you stand
There is a mindset shift here worth naming.
The truth is, people who get prenups usually communicate better around money. It’s not about being scared of breaking up, it’s about being clear and fair if the worst case did happen.
Getting a BFA right comes down to the detail, and the detail is exactly what makes it hold up. If you are weighing one up, talk it through with a prenuptial agreement lawyer before you sign anything. Book a free discovery call with me and my team on 1300 614 732, and we will walk you through your options, no pressure, just honest advice.
Frequently Asked Questions
What is a binding financial agreement?
A binding financial agreement, or BFA, is Australia’s version of a prenup. It is a private written contract between two people that sets out how their assets, debts and finances will be divided if they separate. It can be made before, during or after a relationship, including for de facto couples.
Are prenups actually binding in Australia?
Yes. A binding financial agreement is legally enforceable when it is done properly. The reason some are thrown out is not that prenups do not work here, but that the strict legal requirements, like independent legal advice for each party, were not followed.
What makes a binding financial agreement legally binding?
Three things. Each party must get independent legal advice from their own separate solicitor before signing, the agreement must be in writing and signed by both parties, and each solicitor must sign a certificate confirming that advice was given. Miss one and the agreement can fail.
Can a court set aside a binding financial agreement?
Yes, but only on limited grounds. A court can set one aside for non-disclosure or fraud, duress, undue influence or unconscionable conduct, or a significant change such as the birth of a child that makes the agreement impractical. A properly advised, fully disclosed agreement is hard to unwind.
How much does a binding financial agreement cost?
A properly drafted binding financial agreement usually costs between $5,000 and $10,000, because each party needs their own separate lawyer. It is not cheap, but for the right situation it costs far less than a drawn-out property dispute later.
Can a BFA cover child custody or child support?
No. A binding financial agreement deals with property, finances and spousal maintenance only. It cannot decide parenting arrangements or child support. Those are handled separately, and a court keeps the final say on what is in a child’s best interests.
