Family law matters are deeply personal, touching on our closest relationships, financial security, and future plans. When navigating family law with care and confidence, understanding your preventative legal options is key. While entering into a marriage is an exciting milestone, it is also a major legal and economic partnership.
For individuals with established personal wealth, corporate interests, or family trusts, safeguarding that hard‑earned future requires strategic planning long before the wedding day.
In Australia, a pre‑nuptial agreement under the Family Law Act 1975 (Cth) (the Act) is formally known as a Binding Financial Agreement (BFA). When established prior to marriage, it is governed strictly by section 90B of the Family Law Act 1975.
A Binding Financial Agreement section 90B allows couples to determine in advance how their property, financial resources, superannuation, and maintenance will be managed if the relationship ends. Once validly executed, it effectively displaces the court’s power under section 79 to make property orders.
Because this ousts the court’s jurisdiction, a BFA is one of the most heavily scrutinised documents in Australian family law. Many agreements that appear complete on their face are later set aside by the courts because the technical drafting or the process behind them was flawed.
What Section 90B Strictly Requires
To be a valid agreement under section 90B, the document must be in writing, expressly state that it is made under section 90B, and identify the parties and the marriage they are contemplating. It must deal with one or more of the matters the section permits an agreement to cover the division of property and financial resources, superannuation, and spousal maintenance, and it must be signed by both parties.
Superannuation requires particular care. Where a BFA deals with superannuation interests, the drafting must comply with the specific requirements that apply to superannuation splitting under the Act. An agreement that treats superannuation in general terms, without the precision the legislation requires, risks being unenforceable in relation to that asset even if the rest of the agreement is otherwise valid.
When a Financial Agreement Becomes Binding
Section 90G sets out the conditions that must all be satisfied before a financial agreement is binding. Before signing, each party must have received independent legal advice about the effect of the agreement on their rights, and about its advantages and disadvantages at the time the advice was given.
Each party’s lawyer must then provide a signed statement confirming that advice was given, and a copy of that statement must be provided to the other party or their lawyer.
The Requirement for Substantive Advice
These are not formalities to be completed after the substantive terms are settled. The advice itself must be substantive.
The Full Court has held that a lawyer advising a party under section 90G must first establish what that party’s existing rights and entitlements are by reference to the asset pool, the parties’ contributions, and the relevant matters under section 75(2) before they can properly advise on the effect of giving up a claim under section 79.
A general explanation of how property settlements work, without being applied to the client’s actual circumstances, has been found insufficient to satisfy section 90G(1)(b).
Judicial Discretion Under Section 90G(1A)
That does not mean every shortfall in advice is fatal. Section 90G(1A) gives the court discretion to declare an agreement binding despite non‑compliance with the advice requirements, where it would be unjust and inequitable not to do so.
The court will have regard to the nature and extent of the non‑compliance and the circumstances in which the agreement was made and carried out. This discretion has been exercised to uphold agreements where the parties clearly intended to be bound and the agreement had been substantially performed, notwithstanding a deficiency in the advice given to one party.
Disclosure and the Risk of an Agreement Being Set Aside
Independent legal advice can only be effective if it is based on an accurate picture of the parties’ financial circumstances.
Statutory Grounds Under Section 90K
Section 90K allows a court to set aside a financial agreement in a number of circumstances, including:
- Where the agreement was obtained by fraud,
- Where a party engaged in conduct that was unconscionable, or
- Where the agreement was made to defeat or defraud a creditor or another person with an interest in the outcome.
The Impact of Non-Disclosure
A failure to make full and frank disclosure of assets, liabilities, and financial resources before the agreement is signed exposes the agreement to challenge on these grounds.
Where one party later establishes that the other concealed or misrepresented their financial position, the agreement may be set aside notwithstanding that both parties received legal advice and signed the appropriate certificates.
Undue Influence and the Circumstances of Signing
The High Court’s decision in Thorne v Kennedy [2017] HCA 49 confirmed that a financial agreement may be set aside where it was procured by undue influence or unconscionable conduct, having regard to the circumstances in which it was signed.
Relevant factors include the time available to consider the agreement, whether independent advice could genuinely be obtained and acted upon, and any pressure arising from the timing of the marriage or the relative bargaining position of the parties.
Agreements signed shortly before a wedding, with limited time for either party to take considered advice, remain a recurring feature in cases where enforceability is later contested.
Protect Your Future with Clear and Strategic Guidance
A carefully considered pre-marriage BFA provides profound peace of mind, allowing both partners to move forward into marriage with clarity and mutual respect. Because these agreements bypass the standard judicial pathways used in family law consent orders of Melbourne applications, your legal representation must possess sharp commercial acumen paired with genuine family law insight.
At Warlows Legal, we provide clear, compassionate guidance, combining expertise with genuine care to protect your rights and support your wellbeing. We regularly advise clients on the preparation, structural review, and execution of Binding Financial Agreements tailored to complex asset portfolios, corporate entities, and family dynamics.
