Pre nuptial agreements are literally agreements made between parties prior to
their marriage. Post Nuptial Agreements are made between parties after their
marriage. Both types of agreement are formally known as Binding Financial
Agreements or Financial Agreements.
Financial agreements are made by people who are intending to marry and are
often made shortly before the date of marriage. If parties have no intention of
marrying, then such agreements would normally be referred to as a de facto
agreement or cohabitation agreement. The format of such cohabitation agreements
may vary depending on what State or Territory the parties reside in.
A financial agreement is a written agreement between a prospective husband
and wife as to how they propose to deal with each other both during the marriage
and in the event of a separation at least so far as financial matters are
concerned. The agreement will usually provide how the parties propose to operate
in respect of financial matters, as well as often providing what should occur in
the event of the marriage breaking down including how specific assets are to be
Traditionally, these agreements were common place and indeed, essential as
the law in the 19th century was that John had control over his wife’s assets in
the absence of such agreement. In more recent times, financial agreements have
again become more popular, particularly since the Family Law Amendment Act 2000
(which took effect from 27 December 2000) provided for financial agreements to
be fully enforceable in the Family Court of Australia provided certain
conditions are met by the parties to the Agreement.
In fact, the Act allows for Financial Agreements prior to marriage (see
discussion on Family Law Act 1975 - Section 90B below) after marriage (Section
90C) and even after separation (Section 90D).
To ensure that your financial agreement complies with the Family Law Act 1975
- Make the agreement in writing.
- Make the agreement before your marriage and in contemplation of that
- Ensure the agreement must be signed by the parties.
- Ensure the parties’ signatures are witnessed by an authorized person.
- Ensure both parties have independent legal advice prior to
entering into the agreement, and evidence that by providing Certificates
(Annexure A & B in Document 5) signed by a legal practitioner.
- Ensue that the agreement relates to specified property of the parties. The
property can be in specific terms (eg, the Holden motor vehicle registration
XXY 123) or in general terms (eg, any motor vehicle owned by George).
- Ensure the agreement makes it clear that it is intended by the
parties that the property dealt with in the agreement is not to be made the
subject of the property orders subsequently by the Family Court.
As part of the agreement, there would normally be an itemisation of the
financial position of each party at the time of entering into the agreement. You
would normally list the assets, liabilities and financial resources of each
party together with their values. It is useful at that time to obtain
documentary proof of the values of the assets, liabilities and financial
resources and you should retain that documentary proof.
If it is your intention that, in the event that the marriage is unsuccessful,
you want the Family Court to enforce the terms of the agreement, then it is
essential that both parties comply with the terms of the agreement during the
The decisions you make about your financial arrangements are obviously very
important decisions. The AussieLegal Pre / Post Nuptial Agreement Kit will tell
you what you need to know to enable you to draft a financial agreement.
Your draft agreement must then be taken to yours solicitor, and the other
party must also see their solicitor) to be reviewed and certified before
Under what circumstances should I consider signing a financial agreement?
- If you are a business owner and want to maintain control of that
business in the event of separation;
- You have significant assets;
- You have considerably more assets than your partner;
- You have children from a previous marriage and you want to be sure that
the family wealth passes to them;
- You may be giving up a lucrative career and want protecting in the event
- You have a family member who has special needs, i.e. disabled child;
- You want certainty in respect of your financial position in the event of
- You are concerned about a significant debt that one of you I bringing to
Pre / Post Nuptial Agreements (including legal certification for you AND your
AussieLegal can do all the hard work and have your Binding Financial
Agreement executed quickly and efficiently - no other costs involved:
- Your Agreement will be complete, compliant and fully enforceable;
- This service includes independent legal advice for both parties and
- Save thousands in legal fees compared to other solicitors;
- The price is fixed - no surprises;
- Save time - we are very efficient at dealing with these agreements;
- Convenience - there is no need to make repeated visits to solicitors; and
- Our experience - we have helped hundreds of people establish their Binding
Call 1300 728 200 for more information or click on the link above.