Standard Prenup Terms: Clauses to Include in a Prenup

You own a house or a business, maybe an inheritance is coming, and you’ve met someone you want to build a life with. In the quiet moments there’s a question you haven’t said out loud: if this ends, what happens to what I built before we met?

The short answer: you can sort that out in advance with a prenup. In Australia the legal name isn’t prenup, it’s a Binding Financial Agreement, or BFA, but it’s the same idea. It can set how you divide assets and debts, whether anyone pays spousal maintenance, and how inheritance and super are treated. It can’t decide child support or parenting matters, but it can outline financial support.

None of this is pessimism. In 2025, 49,158 divorces were granted in Australia (Australian Bureau of Statistics). Working this out while everyone still gets along is just being clear, not planning to fail.

A BFA sits under Part VIIIA of the Family Law Act 1975 (Cth). Below is what you can put in one, what you can’t, how it actually becomes binding, and what it costs. Legalities aside, here is a practical overview of what they can include.

What a prenup can and can’t cover

Here’s the ten-second version before the details.

The rest of this page runs through each of these in the order people ask about them.

Dividing assets and debts

This is the reason most people get a BFA. You want the house you bought before you met your partner, or the business you built, to stay yours if things end.

A prenup can record what each of you brings in, and set how the pool is divided later. The premarital versus shared split is the starting point: what was yours before the relationship, and what you build together.

Here’s the catch most clause lists skip. Quarantining an asset only holds if it stays separate. The moment it’s commingled, your partner’s name on the mortgage, their money into the offset account, joint renovations, the protection weakens. If you want the house treated as yours, the agreement has to say so and the money has to actually stay separate.

You can make a BFA at three points: before you marry (s 90B), during the marriage (s 90C), or after a divorce order (s 90D). Same tool, different timing.

If you’re weighing this up against your rights with no agreement in place, that’s a property settlement question, and a different conversation.

Spousal maintenance

You can deal with spousal maintenance in a prenup, whether one of you pays the other support after separation, and how much.

There’s a rule here that catches people out. A maintenance provision is void unless the agreement names the person who’s being maintained and states the amount, or the value set aside for it (s 90E, Family Law Act 1975). A vague “we each support ourselves” line won’t do the work you think it does. Be specific or leave it out.

Protecting an inheritance

If you’re expecting money or property from a parent’s estate, a prenup can keep it quarantined so it isn’t drawn into the pool if you separate.

The same commingling rule applies. An inheritance stays protected while it’s kept separate. Pour it into the family home or a joint account and it starts to look like a shared asset, and the protection erodes. A BFA can also be worded to capture an inheritance you receive after you’ve signed, which is a common reason to review the agreement down the track.

Superannuation

Super is property. Under the Family Law Act 1975, it can be split by agreement, and a BFA can either quarantine it or set how it’s divided.

This happens under the superannuation-splitting scheme in Part VIIIB (for married couples) or Part VIIIC (for de facto couples) of the Family Law Act 1975. It’s not automatic and it has to be done through that scheme, which is one more reason a prenup is worth drafting properly rather than pulling off a template.

Future assets

A common worry: what about the business that grows, the investment property you buy in five years, the inheritance that hasn’t arrived yet? A prenup can be drafted with general wording to cover assets you acquire after signing, not just what you own today.

You can also update it as life changes.

Once you have signed the agreement, you can get this agreement updated with your lawyers, and it can include things like inheritances, new properties or anything that has changed in terms of the general terms.

So a prenup isn’t a one-shot document you sign and forget. Buy a business, receive an inheritance, have a major change in circumstances, and it’s worth going back to your lawyer to update it.

Clauses a prenup can’t enforce

This is where people try to be clever and it backfires. Some things you simply cannot contract out of.

You can’t sign away child support. It’s assessed under the Child Support (Assessment) Act 1989, and a prenup can’t override that. You can create a Limited or Binding Child Support Agreement that covers child support though, and they are drafted in the same way ‘prenups’ are, just later on. Parenting and time with the children can’t be locked in either, because those are decided on the child’s best interests (s 60CC, Family Law Act 1975), not by an agreement you signed years earlier. And lifestyle clauses, the “lose weight” or “cheating costs you the house” terms you see in American movies, are generally not upheld here.

If a clause tries to punish behaviour or bargain away a child’s entitlements, treat it cautiously, not as protection.

How a prenup becomes legally binding

This is the part most clause lists never tell you, and it’s the part that decides whether any of the above is worth the paper it’s written on.

For a BFA to hold up, three things have to happen. Both of you must get independent legal advice from separate lawyers, so no shared solicitor. The agreement has to be in writing and signed. And each lawyer has to sign a certificate confirming that advice was given (s 90G, Family Law Act 1975). These need to be exchanged between parties.

Miss those formalities and you don’t have a weaker agreement, you may have no enforceable agreement at all. The Federal Circuit and Family Court of Australia sets out the same requirements in its financial agreements guide. This is exactly the work our prenuptial agreement lawyers handle, because the certificates are what make the terms stick.

Can a prenup be challenged or set aside?

Yes, but only on limited grounds. A properly made BFA isn’t easily unpicked, and that’s the point of doing it right.

A court can set a BFA aside for things like fraud or a failure to disclose assets, unconscionable conduct, the agreement becoming impracticable to carry out, or a material change affecting a child (s 90K, Family Law Act 1975).

The clearest example is the High Court’s decision in Thorne v Kennedy [2017] HCA 49. A prenup signed four days before the wedding was set aside for unconscionable conduct and undue influence. The lesson from it is simple: don’t spring a BFA on your partner at the last minute. Give it time, give them real advice, and it’s far harder to challenge.

What a prenup costs, and how you get one

Let’s be honest about the money, because no one else on this topic will be.

It’s not cheap. You both need separate lawyers and a properly drafted prenup can cost anywhere between $5,000 to $10,000 as a starting point. This might be a financial barrier for a lot of people.

That range is indicative, not a quote, and it’s a fraction of what a contested property dispute costs if there’s no agreement at all.

The process itself is short and predictable:

1. Talk to your partner. This works best as an early, open conversation, not a surprise.
2. Each of you gets independent legal advice from your own lawyer.
3. You exchange full and frank financial disclosure, so both sides know what’s actually in the pool.
4. You negotiate and draft the terms.
5. You both sign, and each lawyer signs their certificate, and they are exchanged between parties.

Who can get a prenup?

Not just engaged couples. If you’re in a de facto relationship, including a same-sex relationship, you can make a BFA too.

These agreements sit under Part VIIIAB, for example s 90UB for an agreement made before a de facto relationship, and “de facto relationship” itself is defined in s 4AA of the Family Law Act 1975. If you own a home and your partner is about to move in, this is worth sorting before the finances blur.

A real example of how this works

Let me tell you about a client, we’ll call him Ben. Ben had renovated his house and paid it off, and then met Sarah, who moved in with him. He wanted to protect the home he’d built without shutting Sarah out or treating her unfairly.

So Ben came to us and we worked through it honestly.

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 separated. The financial side was settled without going to court, because it had all been agreed and written down years earlier.

That’s the whole point of a well-drafted prenup. It isn’t a one-sided grab. It protects the asset you brought in while still being fair to the person who shared your life, so if the worst happens you resolve it like adults instead of in a courtroom.

Protect what you built, the right way

A prenup is only as strong as the way it’s drafted and signed. Get the clauses right, get the formalities right, and it does exactly what you need it to.

If you want to talk it through, book a free discovery call with me and my team. We’ll explain your options and what a BFA would look like for your situation. No pressure, no judgment, just honest advice. Call 1300 614 732 or send us a message.