Are Prenups Enforceable in Australia?
Yes — but only when the legal requirements are properly met. Here is what makes a BFA stand up.
The short answer is yes
Prenups — formally called Binding Financial Agreements — are enforceable in Australia under the Family Law Act 1975. A properly prepared BFA can override what a court would otherwise decide about property division on separation.
However, not all agreements labelled as prenups are actually binding. The enforceability of a BFA depends entirely on whether it meets the strict legal requirements set out in the Family Law Act.
What makes a BFA enforceable
The Family Law Act sets out specific requirements that must be satisfied for a BFA to be binding:
Independent legal advice — each partner must receive advice from their own separate solicitor before signing. The solicitor must advise on the effect of the agreement and its advantages and disadvantages. This cannot be a formality; it must be genuine advice.
Signed certificates — each solicitor must sign a certificate confirming they gave this advice. The certificates must be attached to the agreement.
Written and signed — the agreement must be in writing and signed by both parties.
Voluntary — both parties must sign freely, without coercion or undue influence.
All four elements must be present. An agreement missing any of them is not binding.
When can a BFA be set aside?
Even a properly executed BFA can be set aside by a court in certain circumstances under section 90K of the Family Law Act:
• The agreement was obtained by fraud, including non-disclosure of a material matter • A party entered the agreement under duress, undue influence, or unconscionable conduct • A party failed to receive genuine independent legal advice • Since the agreement was made, a material change in circumstances has occurred — particularly relating to children of the relationship — that makes it impractical to carry out • The agreement would result in significant hardship to a child or carer of a child
This is why full financial disclosure and genuine independent legal advice are so important. Cutting corners creates vulnerability.
The problem with DIY or template agreements
Many couples attempt to create financial agreements using online templates or without proper legal advice. These documents are generally not binding under Australian law.
The requirement for independent legal advice and signed certificates from each solicitor cannot be bypassed. An agreement without these elements — regardless of how carefully it was written — will not satisfy the Family Law Act.
Courts have set aside agreements where legal advice was perfunctory, where certificates were signed without a genuine advice session, or where the advice given was inadequate.
Does this mean they always hold up?
Not always. The legal requirements for a BFA are strict, and courts have set aside agreements that appeared on their face to be properly executed. This is why the quality of the process matters, not just the paperwork.
A BFA prepared with full financial disclosure, genuine independent legal advice from experienced family lawyers, and proper execution gives couples the strongest possible foundation. It does not guarantee a court will never interfere — but it substantially reduces the risk.
Premuply's process is designed around these requirements: structured financial disclosure, separate independent lawyers for each partner, and proper execution.