Rockwell Family Law offer sensitive, expert advice to help you and your partner enter into a binding financial agreement that is fair and offers maximum certainty should you wish to separate in future.

How to get a pre-nuptial Agreement in Australia.

In Australia, a “Pre-nup” (prenuptial agreement) is known as a Binding Financial Agreement. These Agreements are entered into before de-facto relationships or marriages begin. In order for them to be legally enforceable each person is required to obtain independent legal advice and each have their own solicitor sign a Certificate of Independent Legal Advice. Our team at Rockwell Family Law are highly experienced in preparing and advising on these Agreements. These Agreements cannot be entered into if one person does not agree. Sometimes all it takes is a bit of negotiation and we can help you with that.

Each party to an Agreement needs to seek independent legal advice to ensure the BFA is legally binding.  What this means is the same lawyer cannot represent both parties to a BFA.  If your lawyer drafts the BFA your partner will need to instruct an independent lawyer to review the BFA and provide advice to your partner and vice versa.

What is a Binding Financial Agreement?

A Binding Financial Agreement is a document outlining what is to happen to assets and property in the event of a breakdown of a relationship. The agreement is entered into under the Family Law Act and allows each party to set out how their property and assets will be divided should they separate.

If you and your partner sign a Binding Financial Agreement, you forgo any rights you may have to make claims against each other under the Family Law Act.

Is a Binding Financial Agreement the Same as a Prenuptial Agreement?

A Prenuptial Agreement or ‘Prenup’ is popular terminology in America and other countries and refers to an agreement made by a couple before marriage. The term Prenup is now used often in Australia to refer to its equivalent here which is called a Binding Financial Agreement.

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How Rockwell Family Law can help.

At Rockwell Family Law, we understand that discussing prenups and binding financial agreements (BFAS) can be an emotional and sensitive topic. That’s why we believe in offering a human approach to ensure you feel heard, understood, and supported every step of the way. We certainly don’t want to adversely impact the relationship you already have. With our empathetic team of experienced family lawyers, we strive to provide you with peace of mind during a potentially complex and delicate process.

Our commitment to individualised advice and guidance means we take the time to listen to your unique circumstances, concerns, and goals. We craft tailored solutions that protect your interests. Trust is the foundation of any relationship, and we are dedicated to earning yours by delivering transparent, compassionate, and reliable legal services. Choose Rockwell Family Law to navigate the legal intricacies of prenups and binding financial agreements with confidence, knowing we have your best interests at heart.

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Pre-nup FAQs

  1. Is a Pre-nup legally enforceable?

    If both parties sign the document, it is legally binding and enforceable. If both parties create and sign a second document to nullify the Pre-nup, it can be legally challenged.

  2. What are the benefits of a Pre-nup?

    A Pre-nup can save a lot of time and money in the Family Court in the event of a divorce. You can also protect assets for children and dependants from a previous marriage.

  3. Who should create a Pre-nup?

    This is a conversation you can have with our Family Lawyers. The assets you have prior to a marriage may not be worth the cost of a Pre-nup. However, if you have arrangements and obligations to other people not involved with your marriage, a Pre-nup would be advised.

  4. What are the requirements of a Pre-nup?


    A Pre-nup needs to be in writing. It cannot be a handshake agreement. All provisions must abide by the Australian Family Law Act. The Pre-nup must be fully understood by both parties, and both parties must be at least 18 years of age when the agreement is created.


  5. How much does a Pre-nup cost?

  6. How effective are Pre-nup?

    Pre-nups are a highly effective way to avoid extra stress and conflict during the difficult time of a relationship break up. It’s the exception rather than the rule for a Pre-nup to be voided, provided that you and your lawyer have fulfilled all of the necessary requirements to ensure the Pre-nup is binding.

    Pre-nups are only binding if the requirements of the Family Law Act are met. One of these requirements is that both parties receive independent legal advice for a Pre-nup to be valid. Therefore, you need to appoint a lawyer, such as one from Rockwell Bates, with the necessary skills and expertise to create your Pre-nup.

    These are the requirements your Pre-nup needs to meet under the Family Law Act:

    • Prenuptial agreements needs to be signed by all parties.
    • All parties have obtained independent legal advice about the legal ramifications of the agreement.
    • Signed statements are provided by the independent lawyers, stating that advice in relation to the effect of the agreement was provided to the party that requested advice.
    • The statements provided by the independent lawyers are provided to other parties under the agreement.
  7. What is included in a Pre-nup agreement?

    A prenuptial agreement can specify how the parties have agreed to divide assets if the relationship fails. It will deal with property, financial resources and maintenance:

    • The financial settlement (i.e. property superannuation entitlements)
    • The financial support (maintenance) of one spouse by the other
    • The agreed arrangements for the children
    • Any incidental issues.

    This means the following practical issues that commonly arise are dealt with in the Pre-nup too:

    • Ensure that children of previous relationships inherit
    • Preserve family farms or other businesses for future generations
    • Provide more weight to the contribution of a higher income earner
    • Avoid disputes about financial matters at the end of a relationship.

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