Financial agreements:
before, during and after.

A financial agreement is a contract made under the Family Law Act 1975 dealing with financial matters between parties to a marriage or a qualifying de facto relationship. It may address property, liabilities, financial resources, spousal or de facto maintenance, ancillary matters, and superannuation where statutory requirements are met. To the extent permitted by law, it may exclude or alter the Court's ordinary power to make property or maintenance orders.

Agreements for married couples are governed by Part VIIIA of the Family Law Act 1975. Agreements for de facto couples are governed by Division 4 of Part VIIIAB. The relevant section depends on relationship status and timing.

The term 'prenup' usually refers to an agreement made before marriage. Australian law also permits agreements during marriage, after separation or divorce, before a de facto relationship, during a de facto relationship, and after a de facto relationship. Treating every financial agreement as a pre-wedding document understates the range and the technical detail involved.

An agreement made in contemplation of marriage may deal with how property or maintenance will be handled if the marriage later breaks down. Common reasons include protecting pre-existing assets, preserving family wealth, business succession, second marriages, children from earlier relationships, anticipated inheritances, unequal initial contributions, and agreed treatment of future earnings or acquisitions. These reasons explain why an agreement might be considered; they do not, on their own, guarantee that any particular agreement will later be enforceable.

Parties may enter an agreement after marriage. Common contexts include changed financial circumstances, the receipt of an inheritance, starting or acquiring a business, restructuring ownership, reconciliation, estate-planning arrangements, clarifying the treatment of particular assets, or resolving financial uncertainty while remaining married. Timing and bargaining circumstances remain relevant.

Separated spouses may use a financial agreement to finalise property and maintenance matters as an alternative to consent orders. The technical requirements still apply, and implementation may require transfers, refinancing and superannuation steps. The post-divorce time limits for property and maintenance proceedings remain relevant until matters are legally resolved.

For context on why divorce and financial settlement are separate processes, see the dedicated cornerstone guide.

De facto couples may also enter financial agreements before, during or after the relationship. Different statutory provisions apply and jurisdictional requirements may matter. Western Australia retains distinct de facto property arrangements, and legal advice should account for the relevant jurisdiction.

Subject to statutory requirements, an agreement may address matters such as the ownership of existing property, the treatment of future acquisitions, bank accounts, investments, businesses, trusts, inheritances, debts, guarantees, superannuation, maintenance, the sale or retention of real property, methods of valuation, payment of expenses, and implementation steps after separation. Whether any particular clause is effective depends on the statutory framework and the drafting.

A financial agreement does not determine where children live, the time children spend with each parent, parental responsibility, family-violence protections, criminal matters, or third-party rights merely by private contract. Parenting arrangements remain focused on the best interests of the children.

For an overview, see parenting arrangements are determined separately from financial agreements.

An ordinary financial agreement cannot simply eliminate statutory child-support obligations. Child support may instead be addressed through an administrative assessment, a limited child support agreement, a binding child support agreement, or other statutory processes.

For background, see how child support agreements and assessments operate separately.

To be binding, a financial agreement must generally be in writing, signed by all parties, identify the relevant statutory basis, contain terms dealing with eligible financial matters, be supported by independent legal advice for each party, be accompanied by the required legal-practitioner statements, and not have been terminated or set aside. This guide does not provide drafting language; the formalities are unforgiving and are a matter for the parties' legal advisers.

Before signing, each party must receive independent legal advice about the effect of the agreement on their rights and the advantages and disadvantages of entering the agreement at that time. Separate lawyers are required; one lawyer cannot advise both parties independently. Witnessing a signature is not the same thing as providing advice. The advice must relate to the actual agreement being signed, and the lawyer's statement is itself a statutory requirement. Signing first and seeking advice later may create serious problems.

Presenting an agreement shortly before a wedding, a visa event, a property settlement, the birth of a child or a major financial transaction can create pressure and increase the risk of later challenge. Substantial lead time supports disclosure, negotiation, advice, valuation, revision and reflection. There is no fixed minimum period set by legislation, but the pattern of last-minute presentation is well-known to courts.

Consent must be genuine. Risk factors may include threats to cancel a wedding, immigration pressure, financial dependency, withholding information, extreme time pressure, threats concerning children or housing, an inability to obtain proper advice, or a significant power imbalance. Wedding-related pressure does not automatically invalidate an agreement; courts assess the whole factual context.

An agreement may be vulnerable where one party exploits a special disadvantage in circumstances that equity regards as unconscientious. This is a narrow doctrine that should not be confused with simply making a poor bargain. The threshold is meaningful, and its application depends on the facts.

Accurate financial disclosure is essential to informed negotiation. Relevant information may include real property, bank accounts, investments, companies, trusts, superannuation, debts, tax liabilities, expected inheritances where relevant, financial resources, guarantees and contingent liabilities. Fraud may include material non-disclosure. The current statutory disclosure framework reinforces the importance of full and frank disclosure in financial matters.

Agreement terms often depend on reliable values for real estate, businesses, companies, trusts, investments, defined-benefit superannuation, intellectual property and unusual assets. Formal valuation is not necessary in every case, but inadequate valuation can undermine informed decision-making and may later be relevant to a challenge.

Financial agreements are contractual. They do not require a court to decide that the outcome is just and equitable at the time of signing in the same way as consent orders. Gross imbalance may still be relevant to advice, negotiation and later challenge. The circumstances at execution matter, statutory and equitable grounds may apply, and an apparently harsh agreement is not automatically invalid. Equally, an agreement is not automatically safe merely because both parties signed it.

Legislation provides a limited mechanism by which a court may declare an agreement binding despite some technical non-compliance, where statutory criteria are satisfied. This is discretionary, not guaranteed, and may involve costly litigation. It should not be treated as an acceptable substitute for compliance with the formal requirements.

An agreement may deal with spousal or de facto maintenance. The wording must satisfy statutory requirements. An agreement may seek to exclude or limit maintenance, but maintenance provisions can raise special issues. A person receiving means-tested income support may, in some circumstances, retain statutory rights despite the agreement. Child support remains separate.

A financial agreement may include a superannuation agreement where statutory requirements are satisfied. Issues commonly include identifying the correct fund and interest, specifying the split, providing procedural fairness to the trustee, complying with superannuation-splitting law, obtaining information and valuations, and implementation after separation. Signing the agreement alone does not always complete the split.

For wider context, see how superannuation may be divided after separation.

Agreeing who retains a property does not itself transfer legal title, release a borrower from a mortgage, remove a guarantee, bind the bank, complete refinancing, or address transfer duty or tax. Separate implementation steps are usually required.

For wider treatment, see how property, liabilities and the family home are dealt with after separation.

Agreements involving businesses or trusts may need to consider control, ownership, shareholder rights, trust interests, appointor or trustee powers, retained earnings, loans, guarantees, tax, third parties and succession planning. A family-law agreement does not automatically amend company constitutions, trust deeds or shareholder agreements.

Private agreements do not necessarily defeat creditor rights, bankruptcy law, insolvency claims, statutory clawback provisions or third-party interests. Transactions designed to defeat creditors may be challenged. This is not an area for self-help asset-protection planning.

Family violence and coercive control may affect negotiation, disclosure, the ability to obtain advice, the genuineness of consent, bargaining power, economic circumstances and ultimately enforceability. The current property-law framework applying from 10 June 2025 reinforces the relevance of family violence in property matters. A history of family violence does not automatically invalidate an agreement, but it may be relevant to advice, negotiation and any later challenge.

Children can materially change income, earning capacity, housing needs, care responsibilities, expenses and future plans. A well-drafted agreement may anticipate or provide review mechanisms for significant family changes. Child-related hardship may be relevant to an application to set the agreement aside in specified circumstances.

A court may set aside an agreement where, since it was made, circumstances have arisen relating to the care, welfare and development of a child, the change is material, and enforcing the agreement would cause hardship to the child, a party caring for the child or another person specified by the legislation. Having a child does not automatically invalidate an agreement, but unforeseen child-related circumstances may, in principle, support an application to set it aside.

An agreement may be set aside where circumstances make it impracticable to carry out all or part of it. Inconvenience is not necessarily enough. Poor drafting can create implementation disputes that are then characterised as impracticability. Courts do not automatically rewrite agreements merely because circumstances changed.

Fraud, including material non-disclosure, may justify setting an agreement aside. Common issues include hidden assets, undisclosed debts, misleading valuations, false ownership claims, concealed trust or company interests and material omissions. Not every accidental omission amounts to fraud, but a pattern of incomplete or misleading disclosure is rarely overlooked.

An agreement may be set aside where it was made with the purpose or effect of defeating creditors, as provided by legislation. The detail is technical. This guide does not provide advice on moving assets beyond creditors' reach.

Equitable principles — including duress, undue influence, unconscionable conduct, misrepresentation and mistake in appropriate circumstances — may also be relevant. The availability and application of these doctrines depends on the facts and the legal framework. Asserting one of these grounds is not the same as establishing it.

Possible grounds include fraud or material non-disclosure, technical non-compliance, the agreement being void, voidable or unenforceable, impracticability, child-related hardship, unconscionable conduct, creditor-related grounds, superannuation-related issues, improper pressure or equitable doctrines, and termination or replacement. A challenge does not automatically succeed merely because one party regrets the bargain.

Parties may terminate an agreement through a compliant termination agreement, a later financial agreement that terminates or replaces it, a court order setting it aside, or other legally recognised mechanisms. Informal oral agreement is not a safe method of termination, and may leave the original agreement on foot despite the parties' intentions.

Changes should generally be documented with the same care as the original agreement. Reasons for review may include marriage after a de facto agreement, the birth of children, a major inheritance, a business acquisition, relocation, serious illness, substantial wealth change, separation, reconciliation, retirement, or changes to tax or trust structures. Handwriting amendments onto the original is not a safe approach.

Parties who marry after making a de facto financial agreement should obtain advice about whether the agreement continues to operate, whether it was drafted to address marriage, whether a new agreement is needed, and whether any statutory transition provisions apply. The answer depends on the drafting and the statutory basis used.

Both mechanisms can formalise financial arrangements, but they are different instruments with different requirements.

For a fuller comparison, see the difference between a private financial agreement and property consent orders.

Informal arrangements — emails, handwritten notes, spreadsheets, promises, cohabitation documents, unsigned drafts — may have evidentiary or contractual consequences in some cases. They are not automatically binding financial agreements under the Family Law Act. Informal documents are not always legally irrelevant, but they are rarely a safe substitute for a properly executed agreement when significant assets are involved.

An agreement may be worth considering where there are substantial pre-existing assets, family businesses, trusts, inheritances, children from previous relationships, significant debt, differing financial expectations, cross-border assets, concern about future maintenance, or estate-planning objectives.

It may be less suitable where disclosure is incomplete, time pressure is extreme, one party cannot negotiate freely, costs are disproportionate, circumstances are highly uncertain, the parties expect the agreement to solve parenting issues, or implementation cannot realistically be achieved. The right answer depends on the individual situation.

Costs vary according to the number and type of assets, business or trust structures, the level of negotiation, valuations, superannuation, tax advice, urgency, revisions, overseas assets and the complexity of any maintenance provisions. Each party requires separate advice and representation. This guide does not provide fee estimates.

Implementation may create capital gains tax issues, transfer-duty issues, company or trust consequences, tax effects of payments, refinancing costs and superannuation consequences. A family-law agreement does not itself determine every tax outcome. Tax advice is a separate discipline and should be obtained where the position is significant.

A financial agreement should be coordinated with wills, testamentary trusts, powers of attorney, superannuation nominations, life insurance, jointly owned property, shareholder or buy-sell arrangements, and the possibility of estate claims. An agreement does not necessarily prevent every estate claim or replace a will.

Matters not validly covered by the agreement may remain subject to ordinary ownership rules, the Family Law Act, property or maintenance proceedings, other contracts, trust or company law, and third-party rights. Silence is not always favourable to either party; it depends on the underlying position.

Securely retain the signed agreement, legal-advice statements, disclosure documents, valuations, correspondence, implementation records, any later termination or replacement agreement, and transfer and refinancing documents. Negotiation records can later be useful and should not be routinely destroyed.

Review is sensible after marriage, separation, reconciliation, the birth or adoption of a child, a significant inheritance, the acquisition or sale of a business, major illness or disability, relocation overseas, a substantial income change, retirement, a major property acquisition, or changes to trust or company structures. Review does not itself amend the agreement; any change requires the same formality as the original.

• "Any prenup is automatically binding." Not in Australia.
• "Both parties can use the same lawyer." They cannot.
• "A witness is enough instead of legal advice." It is not.
• "A financial agreement can decide parenting arrangements." It cannot.
• "It can permanently eliminate child support." Ordinarily it cannot.
• "Full disclosure is unnecessary because it is a contract." Disclosure remains important.
• "An unfair agreement is automatically void." It is not.
• "A signed agreement can never be challenged." It can be, on statutory and equitable grounds.
• "A technical defect is always harmless." It is not.
• "The agreement automatically transfers property." It does not.
• "The bank must release a borrower because the agreement says so." It does not.
• "A de facto agreement always continues unchanged after marriage." Not necessarily.
• "A financial agreement and consent orders are the same thing." They are different mechanisms.
• "An oral agreement can terminate it." Generally it cannot.
• "Having a child automatically cancels the agreement." It does not.

• Identify the correct relationship status and timing.
• Identify the correct statutory type of agreement.
• Allow sufficient negotiation time.
• Provide complete financial disclosure.
• Obtain valuations where needed.
• Identify all property, liabilities and financial resources.
• Consider maintenance.
• Address superannuation carefully.
• Consider children and future changes.
• Consider tax, duty and implementation.
• Use separate lawyers.
• Obtain advice before signing, not after.
• Retain all advice statements and signed documents.
• Implement transfers and refinancing separately.
• Coordinate estate planning.
• Review after major life changes.
• Do not rely on an informal 'prenup' template.