What Can Be Included in a Prenup?
A practical guide to the financial matters a BFA can address — and the important things it cannot.
Property owned before the relationship
One of the most common reasons couples create a BFA is to protect property that one or both partners owned before the relationship began. A family home, an investment property, savings built up over years, a share portfolio — these can all be documented as separate property that remains with the original owner on separation.
Without a BFA, Australian family law courts can consider all property — including pre-relationship property — when determining a property settlement. A BFA gives couples clarity and certainty about what stays separate.
Property acquired during the relationship
A BFA can also address how property acquired together during the relationship will be treated on separation. This includes:
• A family home purchased together • Investment properties bought during the relationship • Joint savings and bank accounts • Investments made together
Couples can agree in advance on what proportion each would receive, or set out a formula for calculating each person's entitlement based on financial contributions.
Businesses and company interests
Business interests are among the most important things a BFA can address. If one partner owns a business — whether as a sole trader, through a company, or as part of a partnership — a BFA can clarify that the business remains their separate property on separation.
This matters not just for the business owner, but for the business itself and anyone who depends on it. A property settlement that forces a sale or transfer of business interests can have consequences well beyond the couple.
Debts and financial liabilities
A BFA can address how debts are treated on separation. This includes:
• Mortgages on property • Personal loans and credit card debts • Business debts • Tax liabilities • Guarantees
Documenting which debts belong to which partner — and how jointly held debts will be handled — reduces conflict and uncertainty if the relationship ends.
Superannuation
Superannuation can be addressed in a BFA, though this area involves specific legal considerations. A BFA can note the intended treatment of superannuation interests, and this can be given effect through superannuation splitting arrangements.
Because superannuation is a complex area with its own legislative framework, your lawyer will advise on how superannuation should be addressed in your specific situation.
Family gifts and inheritances
If one partner receives a gift from their family — a deposit for a home, money to start a business, or a direct inheritance — a BFA can document that this contribution is treated as separate property belonging to the recipient.
Without a BFA, courts may treat a gift or inheritance as a contribution to the relationship pool, depending on the circumstances. Many couples create a BFA specifically to address family contributions of this kind.
What a BFA cannot cover
A BFA cannot include arrangements about children — their care, living arrangements, welfare, or maintenance. These matters are governed by separate provisions of the Family Law Act and cannot be predetermined by a financial agreement.
A BFA also cannot prevent either party from applying to a court in relation to children's matters. Courts retain the power to make orders about children regardless of what any BFA says.
Some couples also have expectations about lifestyle, conduct, or relationship terms. These are not legally enforceable through a BFA and attempting to include them can cause problems.