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What is included

Before marriage: s 90B

The Family Law Act provides for Financial Agreements to be made  in three situations for married couples:

Before marriage agreement which is sometimes known as a prenuptial agreement, sets out the way some or all of a couple’s assets will be divided in the event that their relationship breaks down. It can also deal with spousal maintenance.

An Agreement before marriage s 90B is for parties who intend to get married but are not married yet.

Table of contents

  1. Separate property.
  2. Joint property.
  3. During marriage.
  4. Separation.
  5. Division of property after marriage.
  6. Independent legal advice.
  7. Taxes.
  8. Provision from the estate of a deceased party.
  9. Notices.
  10. Governing law and jurisdiction.
  11. Further assurance.

Execution page.




Statement under section 90G of the Act 1975

Separation declaration pursuant to section 90D Act 1975.

14 pages long.


Includes GST



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What is it?

A Binding Financial Agreement (BFA) before marriage, commonly known as a prenuptial agreement or prenup, is a legal document that outlines the financial arrangements and agreements between two individuals who are planning to get married. This agreement specifies how assets, liabilities, and financial resources will be divided in the event of a separation, divorce, or death. In Australia, BFAs are governed by the Family Law Act 1975.

Key Elements

Key Features of a Prenuptial Binding Financial Agreement

  1. Legal Framework:

    • Governed by the Family Law Act 1975 in Australia.
    • Must comply with specific legal requirements to be binding and enforceable.
  2. Content of the Agreement:

    • Division of Assets and Liabilities: Specifies how property, assets, and liabilities will be divided if the marriage ends.
    • Spousal Maintenance: Addresses any spousal maintenance arrangements, including whether one party will provide financial support to the other and under what conditions.
    • Financial Resources: Details any other financial resources or entitlements, such as superannuation, and how they will be treated.
    • Debt Responsibility: Clarifies how debts incurred before or during the marriage will be handled.
    • Inheritance and Estate Planning: May include provisions for inheritance and estate planning to protect family wealth.
  3. Legal Advice:

    • Both parties must receive independent legal advice before signing the agreement.
    • Ensures each party understands the implications of the agreement and that their consent is informed and voluntary.
  4. Certification:

    • The agreement must include a statement from each party’s lawyer confirming that they have provided independent legal advice regarding the advantages and disadvantages of the agreement.
  5. Formal Requirements:

    • Must be in writing and signed by both parties.
    • Should comply with any other formal requirements outlined in the Family Law Act.

Benefits of a Prenuptial Binding Financial Agreement

  1. Certainty and Clarity:

    • Provides clear guidelines for the division of assets and financial arrangements, reducing uncertainty and potential disputes.
  2. Protection of Assets:

    • Allows individuals to protect their assets, including those acquired before the marriage.
  3. Flexibility:

    • Can be tailored to suit the specific needs and circumstances of the couple.
  4. Reduction of Stress and Conflict:

    • Helps minimize conflict and stress if the marriage ends, as financial matters are already agreed upon.
  5. Inheritance Protection:

    • Can protect family inheritances and ensure that they are distributed according to the parties’ wishes.

Potential Issues and Considerations

  1. Changing Circumstances:

    • The agreement may need to be reviewed and updated if there are significant changes in circumstances, such as the birth of children or substantial changes in financial status.
  2. Fairness and Enforceability:

    • Courts can set aside a BFA if it is deemed unfair, fraudulent, or if it was signed under duress. Therefore, it is crucial that the agreement is fair and equitable.
  3. Independent Legal Advice:

    • Both parties must have independent legal advice for the agreement to be enforceable, which can add to the initial cost of creating the agreement.

Steps to Create a Prenuptial Binding Financial Agreement

  1. Discuss and Negotiate Terms:

    • The couple discusses and negotiates the terms of the agreement.
  2. Draft the Agreement:

    • A lawyer drafts the BFA, ensuring it meets legal requirements.
  3. Independent Legal Advice:

    • Each party seeks independent legal advice to understand the implications of the agreement.
  4. Sign and Certify:

    • Both parties sign the agreement, and their lawyers provide certification of the independent legal advice.
  5. Review and Update:

    • The agreement should be reviewed periodically and updated as necessary to reflect any changes in circumstances.

Creating a prenuptial Binding Financial Agreement can provide significant benefits by establishing clear financial arrangements and protecting the interests of both parties.

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