Your 2026 guide to prenups in Australia

Let's be honest, bringing up a prenup can feel like you're planning a breakup before you've even tasted the wedding cake. It’s right up there with "we need to talk" on the list of phrases that make your stomach do a little nervous flip. But what if it's actually one of the smartest, most caring things you can do for your relationship?

Seriously. Prenups, or as they’re officially called, Binding Financial Agreements, are becoming way more common in Australia for regular couples, not just billionaires with yachts. Think of them less as a relationship escape hatch and more as a super practical tool for anyone who wants to protect what they have and set clear expectations for the future.

This guide will walk you through everything about prenups in Australia in simple, human terms. No confusing legal jargon, we promise. By the end, you'll have a good idea of what they are, how they work, and whether getting one is the right move for you and your partner.

What exactly is a prenup?

Basically, a prenup is a financial roadmap for your relationship. It’s a document you both create that spells out how you’ll manage your finances and, if you ever go your separate ways, how your assets will be divided. It’s all about getting the money stuff sorted upfront so it doesn’t become a point of stress or conflict later on.

In Australia, the proper legal term is a Binding Financial Agreement (BFA). We’ll mostly stick to calling it a prenup because it’s a lot easier to say (and sounds less like a tax form), but it’s good to know the official name.

According to the Family Law Act 1975, these are written contracts that outline how a couple’s property and finances will be split if the relationship ends. You can make one before getting married or moving in together (the classic prenup), during your relationship (sometimes called a postnup), or even after you’ve separated.

The biggest myth we need to bust is that a prenup means you expect the relationship to fail. It doesn't. It’s about building a foundation of clarity and security so you can both relax and focus on the important stuff, like building a great life together.

Legal requirements for prenups in Australia

For a prenup to be worth the paper it’s printed on, it has to follow some very strict rules. This isn't a handshake deal or something you can scribble on a napkin over dinner, and getting it wrong can make the whole thing invalid.

The role of the Family Law Act 1975

Prenups are legally recognised under the Family Law Act 1975. This hefty piece of legislation is the official rulebook for family law in Australia. Specifically, Part VIIIA of the Act covers agreements for marriages, while Division 4 of Part VIIIAB is for de facto relationships.

The Act sets out the exact conditions that have to be met for an agreement to be legally binding. Think of it like a checklist from the government. If you miss a single box, a court could decide to throw the agreement out later on, which would be a huge waste of time and money. That’s why getting it right from the start is so important.

Key requirements for a valid prenup

To make sure your BFA is watertight, it has to meet several key requirements. There’s no wiggle room here, so these are important.

• It must be in writing and signed by both of you. This one’s pretty obvious. It has to be a formal legal document, not just a casual email chain.
• You both must get independent legal advice. This is a big one. Each of you must see your own separate lawyer for advice on the agreement's effects and its pros and cons. You can’t use the same lawyer, not even to save a few quid.
• Your lawyers must provide a signed statement. After giving you advice, each lawyer has to provide a signed certificate confirming they did. And here’s the kicker: a copy must be given to the other person or their lawyer before you sign the final agreement.
• Full financial disclosure is a must. You have to be completely open about your financial situation. We’re talking everything: assets, debts, superannuation, and even potential inheritances. Hiding that secret savings account or pretending you don’t own a priceless comic book collection is a big no-no and can get the agreement thrown out later.

What can a prenup cover (and what it can't)?

A prenup is pretty flexible, but it doesn’t cover everything. You can't, for instance, decide who gets custody of your future dog, Fluffy (though people definitely try!). Here’s a clear breakdown of what’s on and off the table.

Pros and cons of getting a prenup

Like any big decision, getting a prenup has its good and bad points. It’s not the right move for every couple. Let's lay them all out so you can weigh them up for yourselves.

The good stuff (the pros)

• Clarity and Certainty: A prenup gives you a clear, agreed-upon plan for your finances. This can seriously cut down on stress and arguments if a separation ever happens because the hard decisions are already made.
• Asset Protection: It’s a great way to protect things you’re bringing into the relationship, like a business you started, a property you own, or a future inheritance. This is a big deal for people entering a second marriage who have kids from a previous relationship they want to look after.
• Saves Time and Money: Yes, there's an upfront cost, but a solid BFA can prevent long, messy, and eye-wateringly expensive court battles down the line. A contested divorce can easily run you $50,000 to $100,000 in legal fees, which makes a prenup seem like a bargain in comparison.
• Boosts Communication: This might sound weird, but creating a prenup forces you to have incredibly open conversations about money, values, and what you expect from the future. Getting on the same financial page is a healthy way to start any long-term relationship.

The not-so-good stuff (the cons)

• The Romance Killer: Let's be real, bringing it up can be awkward. No matter how you spin it, it might feel like you’re planning for the worst, even if that's not what you mean at all.
• The Cost: A BFA isn't cheap. Drafting the agreement can cost anywhere from $3,500 to $20,000, depending on how complex your finances are. On top of that, you each need to pay for your own independent legal advice, which is usually another $500 to $1,500 each.
• Can Feel Unfair Later: An agreement that seems fair today might feel a lot less so after 20 years, a couple of kids, and a life built together. Circumstances change, and a prenup can sometimes struggle to account for the non-financial contributions one person makes.

When can a prenup be overturned?

A prenup is strong, but it’s not invincible. A court can decide to set it aside in certain situations, which usually happens when the rules weren’t followed or something is grossly unfair. These situations include:

• Fraud or hiding assets: If one person wasn't totally honest about their finances (like that comic book collection we mentioned).
• Duress or unconscionable conduct: This is when someone was pressured, threatened, or bullied into signing. The famous case of Thorne v Kennedy is a key example, where an agreement was signed just days before the wedding under huge emotional and financial pressure.
• It wasn't done right: If the strict legal steps, like getting separate legal advice, weren't followed to the letter.
• A major change in circumstances: This often relates to kids. If the agreement would cause serious hardship for the parent caring for a child of the relationship, a court might step in.

How to get a prenup in Australia: A step-by-step guide

Okay, so you’ve talked it over and decided to look into getting a prenup. What’s next? Here’s a simple breakdown of the process.

Let's unpack those steps:

1. Voluntary Agreement: The whole thing starts with an open and honest chat. It’s absolutely vital that this is a free choice for both of you. Any hint of pressure can get the agreement thrown out later.
2. Full Financial Disclosure: Time to lay all your financial cards on the table. Both of you need to create a detailed list of your assets, debts, and super. Honesty is everything here.
3. Drafting the Agreement: One of you will usually hire a family lawyer to draft the BFA. This document will be tailored to your specific situation, covering all the bases and aiming for a fair outcome.
4. Independent Legal Advice: This is the non-negotiable step. You both take the draft agreement to your own, separate lawyers. They’ll go through it with you, explain what it all means, and advise you on your rights.
5. Sign and Store: Once everyone is on board and the lawyers have provided their signed certificates, you both sign the agreement. The original document should then be stored somewhere very safe.

Is a lawyer necessary for a prenup?

We've mentioned it a few times, but this is so important it needs its own section. Do you really need a lawyer for a prenup?

Short answer: Yes. Absolutely. 100%.

Longer answer: The Family Law Act 1975 makes getting independent legal advice for both people a mandatory requirement for a prenup to be legally binding. There is no way around this.

A lawyer's job isn't just to stamp a document. They're there to make sure you truly understand what you're signing, what rights you might be giving up, and whether the agreement is fair from a legal point of view.

Without those signed certificates from two different lawyers, the agreement just won't hold up in court. Trying to DIY a prenup or use an online template without proper legal advice is a complete waste of time and money.

Top tips for a successful prenup

Want to make sure your prenup is solid and the process goes as smoothly as it can? Here are five golden rules to follow.

1. Start early. Do not leave this until the week before the wedding. That just screams "pressure" and is a massive red flag that a court could use to invalidate the agreement. Give yourselves plenty of time for calm chats, thoughtful negotiation, and proper legal review.
2. Be totally transparent. This is the time for full and frank financial disclosure. We can't say this enough. Hiding an asset, no matter how small you think it is, is a surefire way to have the whole thing thrown out by a judge.
3. Get the right legal advice. Don't just go to any lawyer. Find family lawyers who specialise in BFAs. This is a tricky area of law, and you want an expert on your side. This isn't a job for your mate who does corporate law or your cousin who just finished their degree.
4. Customise the agreement. A prenup is not a one-size-fits-all document. A good lawyer will help you tailor it to your specific situation, your shared needs, and your future goals. The more it reflects your unique story, the more likely it is to be seen as fair.
5. Review and update it. Life changes. You might have kids, start a business together, or get a large inheritance. It’s a good idea to review your prenup every few years or after any big life event to make sure it still makes sense.

The conversation around prenups is changing, with more Australians seeing them as a practical financial tool rather than a sign of distrust. To understand why they're on the rise, especially in the current economic climate, check out this insightful report from ABC News.

Planning for the future is always a good idea

So there you have it. A prenup, or BFA, isn’t the scary, romance-killing document it's often made out to be. At its heart, it’s a practical tool for financial clarity that helps couples plan for their future with their eyes wide open.

It’s not about expecting failure; it's about responsible planning, together. By having these tough conversations now, you build a foundation of honesty and trust. And that can actually make your relationship stronger, allowing you to move forward with confidence, knowing you’re both on the same page.

How Willfully can help you plan ahead

While prenups are for planning your financial future as a couple, they're part of a bigger picture: making sure your future is secure and the people you love are protected.

At Willfully, we’re all about making that kind of planning simple and affordable for all Australians. Although we don't handle prenuptial agreements, we specialise in helping you create other key legal documents online, like legally-binding Wills and Powers of Attorney.

Think of it as the next logical step in getting your life admin sorted. Once you've planned for your relationship, you can plan for your estate, ensuring your wishes are clear and your loved ones are looked after.

If you're ready to take control of your estate planning on a modern, stress-free platform, visit Willfully to learn more and get started today.

Frequently Asked Questions

How much does a prenup in Australia cost?

The cost can vary quite a bit, from around $3,500 to over $20,000, depending on how complicated your financial situation is. You also both need to pay for separate legal advice, which adds to the total cost.

Can I write my own prenup to save money?

Unfortunately, no. For a prenup to be legally binding, both people must receive independent legal advice from their own lawyers. DIY or template agreements simply won't hold up in court.

What happens if I don't have a prenup and we separate?

Without a prenup, your assets would be divided according to the rules in the Family Law Act. This often means going through mediation or court to reach a settlement, which can be a long and expensive process.

Are prenups only for wealthy people?

Not at all! While they're useful for protecting significant assets, many everyday couples get them to create financial clarity. They are especially helpful if one person owns a business or expects an inheritance.

How long does it take to finalise a prenup?

It’s best to start the process several months before you get married or move in together. This gives you enough time for discussions, financial disclosure, drafting the agreement, and getting legal advice without feeling rushed.