Prenuptial Agreements in Victoria
03 April 2025
Prenuptial agreements are becoming increasingly sought after in Victoria, as more and more individuals see the value in protecting their financial assets when entering into a significant relationship. A prenuptial agreement can help ensure that, in the circumstance your relationship ends, you have some certainty about what financial situation you will be left in, and what assets will be protected.
In this article, we’ll look in detail at what prenuptial agreements are, who they are for, and whether or not they are legally binding, amongst other topics.
What is a prenup?
Under Australia’s Family Law Act of 1975, there are standard property laws that apply relating to how shared assets are divided up between parties in the event of a marriage or de facto relationship breakdown. When these laws are enforced, involved parties may not have control over how assets are split, and may come away from a separation disappointed with final outcomes.
A prenuptial agreement, also known as a ‘Financial Agreement’ or ‘Binding Financial Agreement’, involves parties opting out of those property laws. Instead, they create their own agreement around how shared assets will be divided in the event that they separate. (Note that ‘prenuptial agreements’, ‘premarital agreements’ and ‘postnuptial agreements’ are all different names for a Financial Agreement.)
What are the benefits of a prenup?
At the point a relationship ends, there may be disharmony in the partnership, and it may be difficult to negotiate a fair settlement in these circumstances. Mediation may be required, which adds to overall separation costs. If matters are drawn out in court, it becomes even more expensive.
Having a prenup in place means both parties are clear on the matter of property division at the outset of their relationship, (and during their relationship if they update the agreement). This can bring peace of mind to those in the relationship, and reduce friction surrounding the question of who will ultimately end up with what. It also makes it far easier for both parties to move forward with their lives after separation, and significantly minimises legal costs.
Who can get a prenup, and when?
You don’t need to be married to obtain a prenup or financial agreement. Those in de facto relationships can also create one.
It’s also worth noting that financial agreements can be made at any stage of the relationship—not only prior to the commencement of cohabitation. They can be made:
Before the marriage or de facto relationship (prenup) – This outlines how assets, debts, and financial matters will be handled if the relationship ends.
During marriage or de facto relationship (postnup)– This clarifies financial arrangements while still together, or is an update to a prenup, which takes into account changes in circumstances that arise during the relationship.
After separation or divorce – This financial agreement aims to formally divide assets and avoid court disputes.
For a financial agreement to be legally binding, both parties must have independent legal advice and sign the agreement voluntarily.
What assets can be included in a prenup?
A prenup in Victoria can cover a variety of financial matters, including property, assets, debts and liabilities, and financial arrangements.
Property & Assets
Real estate (land, homes, investment properties)
Vehicles (cars, motorcycles, motorhomes, caravans, boats)
Business interests (partnerships, companies, shares)
Bank accounts and cash savings
Superannuation (subject to family law restrictions)
Debts & Liabilities
Personal loans
Mortgages
Business debts
Credit card debt
Financial Arrangements
Spousal maintenance (financial support after separation)
Division of assets and property if the relationship ends
Management of joint finances during the relationship
What must be excluded from a prenup?
A financial agreement can’t include matters related to child support, as these are dealt with in a separate agreement.
Other excluded matters include:
Non-Financial or Personal Relationship Matters
Why? Australian law doesn’t enforce private agreements about daily responsibilities (e.g., household chores, fidelity clauses, or agreements on having children).
Alternative: These are personal choices, not legally binding financial matters.
Unfair, Unconscionable, or Illegal Terms
Why? If a prenup is deemed grossly unfair or obtained through coercion, fraud, or undue influence, it can be set aside by the court.
Example: A clause that leaves one party with nothing while the other keeps all assets may not hold up in court.
Future Claims Against Third-Party Assets
Why? A prenup cannot dictate the distribution of assets that belong to a third party, such as an inheritance that has not yet been received.
Superannuation Splitting Without Proper Legal Process
Why? Superannuation is a regulated financial resource, and any division must comply with the Superannuation Industry (Supervision) Act 1993.
Alternative: A separate superannuation agreement must be in place for splitting superannuation.
Understanding Prenuptial Agreement Requirements in Victoria
No matter where you reside in Australia, the laws relating to prenuptial agreements will be the same. This is because prenups (Financial Agreements) are governed by federal, rather than state/territory law, (they fall under the Family Law Act 1975 [Cth]). In saying that, there may be variation when it comes to the interpretation and enforcement of agreements in various jurisdictions.
Are prenups in Victoria legally binding?
Financial Agreements (prenups and postnups) are legally binding, no matter where you reside in Australia, however, a number of provisions must be met in order for them to be enforceable.
These include:
Agreement must be voluntary: Individual parties must enter into the financial agreement voluntarily. If it is found that there was coercion or duress at play when the prenup was signed, it may be deemed invalid.
Independent legal advice: Before signing a financial agreement, individual parties must receive independent legal advice from separate lawyers.
Full disclosure is required: Both parties are required to fully disclose their assets, income, financial resources, and liabilities. Leaving out information indicates that the financial agreement may have been obtained dishonestly.
Agreement on what will be included in the asset pool: Both parties need to be in agreement on which assets will and won’t be considered in the asset pool. This may mean that certain assets are excluded from the agreement, and won’t be subject to division or claims under the terms of the agreement, effectively quarantining the assets in the event of divorce or separation.
Child custody or child support matters are excluded: As mentioned above, financial agreements cannot include terms regarding how children are supported or who receives custody in the event of a divorce or separation.
In addition to the above provisions, there are requirements surrounding paperwork that help to ensure the agreement is valid and enforceable.
The agreement must:
Include a declaration of separation, which is only signed in the event of a separation. (Note that, the financial agreement will take effect if at least one of the parties signs it at separation.)
Be signed before a witness, otherwise it is not enforceable.
Include a statement from each party’s lawyer, declaring that independent legal advice was given regarding the consequences of the financial agreement. (These two statements are attached to the document.)
Why do individual parties need separate legal advice before signing a prenup or postnup?
It is important for each party to receive independent advice from separate lawyers before making a financial agreement with their partner. With independent legal advice:
Each individual has the opportunity to understand the full implications of the agreement they’re signing onto. There are no nasty surprises down the road.
Each party receives expert legal advice on the potential advantages and disadvantages that may impact them in the current prenup draft. They can then request amendments to make the arrangement more fair.
The legal advisor can read the financial agreement and ensure it will be valid and enforceable in the event of a separation. Ensuring the agreement is rock solid helps to prevent legal problems that may arise in the future.
The lawyer can draft the final agreement, so as to ensure it contains all relevant information and covers the required topics.
Situations when a prenup may be rejected
A court may reject a prenuptial or postnuptial agreement in the following circumstances:
The financial agreement cannot have been obtained through duress, undue influence, or fraud (one party did not disclose to the other party their full assets and liabilities)
One of the involved parties did not receive independent legal advice before they signed the agreement.
Circumstances for either or both parties have significantly changed, for instance, they have had children since the prenup was signed, developed a health condition, or have had a significant change in employment status that will impact their earning capacity into the future.
This shows why it is crucial, when creating a prenup, to ensure all provisions are met, so that the agreement is as solid as possible. In addition, prenups can be updated during a relationship, to reflect significant changes in circumstances.
Should you update an existing prenup?
It’s well worth updating a prenup if your circumstances change. Significant changes in circumstances during a relationship include:
The partners have had children together
Either partner develops a health condition
The employment circumstances of one or both partners change
One or both partners have received, or are soon to receive, a financial gain, such as an inheritance
One partner has entered into a business and the other wants to protect their financial interests.
Prenup Lawyers in Victoria
Contact Aitken Partners, Victoria’s Binding Financial Agreement lawyers for support with creating or updating a prenup. We help you to ensure that the financial agreement you make will be legally enforceable in the event that you and your partner separate.