When couples think about prenups in Australia, they tend to focus on property: who keeps the house, who holds the business, how superannuation gets split. Spousal maintenance gets far less attention, yet it's one of the issues a binding financial agreement (BFA) can directly address. Understanding how these two things interact is worth doing before you sign anything.
What spousal maintenance actually is
Spousal maintenance is financial support paid by one former partner to another after a relationship ends. It's not the same as child support. It applies when one person can't meet their own reasonable needs from their personal income or assets, and the other person has the capacity to pay.
Under the Family Law Act 1975 (Cth), there's a legal obligation for a party to maintain their former spouse or de facto partner in certain circumstances. Courts look at factors including earning capacity, age, health, care responsibilities for children, and the length of the relationship. It isn't automatic. It requires an application, and courts weigh both sides carefully.
Can a prenup actually deal with spousal maintenance?
Yes. Section 90B of the Family Law Act allows a BFA to cover spousal maintenance, not just property. The two parties can agree in advance to limit, exclude, or set the terms of any future maintenance obligation. That's a significant tool, and it's one reason what a prenup can and cannot do in Australia is worth reviewing carefully before drafting any agreement.
In practical terms, a BFA covering spousal maintenance might state that neither party will seek maintenance from the other, or it might cap payments at a fixed amount or time period. Some agreements tie maintenance provisions to specific triggers, such as one partner leaving the workforce to care for children.
The key limitation: hardship provisions
This is where things get more complicated. Even if a BFA validly excludes maintenance, a court can set that provision aside if enforcing it would cause one party serious hardship at the time it becomes relevant. This isn't a minor carve-out. It's a genuine safeguard built into the legislation.
The hardship test applies at the time of enforcement, not at the time the agreement was signed. So a clause that seemed fair when both parties were in similar financial positions may look very different after 10 years of one partner working and the other raising children. Courts won't mechanically apply a clause that leaves someone unable to meet basic living needs.
This doesn't mean maintenance exclusions are useless. It means they need to be drafted with care and reviewed as circumstances change. A blanket "no maintenance ever" clause is far more vulnerable than one that's calibrated to the parties' actual situation.
De facto couples and spousal maintenance in a BFA
De facto couples in Australia have access to the same BFA framework as married couples, including provisions covering maintenance. The relevant sections under the Family Law Act extend to de facto relationships that meet the qualifying criteria. If you're in a de facto relationship and unsure of your entitlements, the broader question of de facto break up entitlements in Australia covers the legal landscape in detail.
One practical difference is that de facto partners sometimes underestimate how maintenance-relevant their relationship is. A couple who have lived together for several years, where one has scaled back work, can face the same maintenance dynamics as a married couple. A BFA addressing this specifically can avoid disputes later.
Why drafting matters more than intent
A maintenance provision in a BFA that isn't drafted correctly may not hold. Australian courts have set aside entire BFAs on procedural grounds, and individual clauses can be severed or overridden if they don't meet the legal requirements. The Family Law Act is precise about what independent legal advice must cover, and maintenance provisions are part of that advice requirement.
Each party must receive independent legal advice about the effect of the agreement, including what rights they are giving up. If the lawyer's certificate doesn't specifically address the maintenance clauses, that creates a gap. It's not enough to have signed a certificate; the advice must have been genuinely given and received.
Poor drafting is one of the most common reasons maintenance provisions fail. Vague language, circular definitions, or clauses that don't actually extinguish the right they claim to extinguish can all leave the agreement open to challenge.
When to think about this before signing
Spousal maintenance becomes most relevant in a few specific situations: relationships with a significant income gap, arrangements where one person plans to leave work or reduce hours, long relationships where financial dependency builds over time, and situations involving one partner holding a business or substantial assets.
If any of those apply to your relationship, a prenup that addresses only property and ignores maintenance is incomplete. It leaves a significant financial obligation unresolved. Rockwell Family Law Services works with clients to identify maintenance risks before a BFA is signed, not after they've become a dispute.
Maintenance provisions in a BFA are not the right fit for every couple. But for those where the risk is real, getting this part of the agreement right from the start is worth every bit of the additional attention it takes.