Binding Financial Agreements & Prenups, Sydney

People ask us about prenups for good reasons. They own a home, or have savings or a business from before the relationship. Their parents have helped them financially. They have children from a previous relationship. Or they simply want to agree calmly, in advance, on what would be fair.

A prenup is only worth having if it holds up when it matters, often years later. Most agreements that fail do so because of how they were made: signed too close to the wedding, without full information, or without proper independent advice. We make sure yours is done properly, and we help you have the conversation with care.

Binding financial agreements are made under Part VIIIA of the Family Law Act 1975 (Cth) for married couples, and Part VIIIAB for de facto couples. They can deal with how property, financial resources and superannuation are divided, and with spousal maintenance.

An agreement is binding only if strict requirements are met. In summary:

• it is in writing and signed by both parties;
• before signing, each party received independent legal advice about the effect of the agreement on their rights, and its advantages and disadvantages to them at the time;
• each party has a signed statement from their lawyer confirming that advice was given; and
• the agreement has not been terminated or set aside.

If an agreement is binding, the court cannot make property orders inconsistent with it. It can, however, be set aside, for example for fraud or failure to disclose a material matter, for duress, undue influence or unconscionable conduct, or for a material change in circumstances relating to the care of a child that would cause hardship.

In Thorne v Kennedy (2017), the High Court set aside agreements signed shortly before a wedding where one party was under serious pressure and the terms were plainly unfavourable. The lesson is simple: timing, disclosure and genuine independence are not formalities.

If either of you owns a business, the agreement should line up with any shareholders' agreement and with your wills, so everything points in the same direction.

Whether we act for the party seeking protection or for the party asked to sign, our aim is an agreement that is fair enough to be signed without resentment and robust enough to be enforced.

When you ask us to prepare an agreement, we draft it, manage disclosure, deal with your partner's lawyer, and supervise execution so that every formal requirement is met and evidenced. When you are asked to sign one, we give you clear, independent advice on what you would be giving up, negotiate improvements, and, if the agreement is unfair, tell you plainly.

We also review existing agreements, including those made years ago or overseas, and advise on whether they are likely to hold. Read more in Do prenups actually hold up in Australia?