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Binding Financial Agreements (including Prenuptial Agreements)

If you and your partner can agree to the division of your property, you can formalise these arrangements outside of Court, by entering into a Financial Agreement.

This can happen following separation, during your marriage or de facto relationship, or before your marriage or de facto relationship.

Financial Agreement

A Financial Agreement is a binding and enforceable contract made under the Family Law Act 1975 which sets out how the property of a relationship will be divided in the event of a separation.

It is important to consider a Financial Agreement when:

A valid Financial Agreement means the Federal Circuit and Family Court of Australia generally can’t make its own orders about the matters your agreement covers, such as dividing your property or whether one of you pays spousal maintenance. Instead, you and your partner decide those terms yourselves.

The law and Financial Agreements

Because Financial Agreements purport to oust jurisdiction of the Court, the law about them is complex. The Agreements themselves must meet certain technical requirements in order to be binding. Importantly, all parties to a Financial Agreement are required to obtain independent legal advice. It is a requirement that both parties’ lawyers sign a Certificate of Independent Legal Advice and a copy must be exchanged between the parties and/or their lawyers.

A Court can set aside a Financial Agreement in limited circumstances, including where:

Section 90B Financial Agreement (“Pre nuptial agreement”)

A Section 90B Financial Agreement is a Financial Agreement that is made before you get married. It sets out how your property and finances will be divided if the relationship ends. Many couples use one to protect assets they bring into the marriage, such as a business, an inheritance or property. De facto couples can make similar agreements. To be legally binding, these Financial Agreements must meet strict requirements, including that each of you receives independent legal advice before signing.

How we can help

At Empower Family Law and Mediation, we can help you to ensure that your Financial Agreement clearly sets out your agreement and meets all legal requirements. Contact us on (03) 7020 6542 to discuss whether a Financial Agreement is right for you.

FAQ’s

Do we each need our own lawyer?

Yes, each party must receive independent legal advice from their own lawyer, who signs a certificate confirming they have been given advice. You can’t share a lawyer with your partner.

Do we have to disclose all our finances?

Disclosure isn’t a stated requirement for every agreement, but failing to disclose important information can be grounds to set the agreement aside. Full and frank disclosure is strongly recommended.

How is a Financial Agreement different from consent orders?

Consent Orders are approved by the Court, which must be satisfied the outcome is just and equitable. A Financial Agreement is a private contract that can be made before, during or after a relationship, but it must meet strict technical requirements and can be challenged later.

Can we change or end our agreement?

Yes, by making a new agreement that meets the same legal requirements. A Court can also set one aside in limited circumstances.

Does it cover our children?

It can deal with property and spousal maintenance, but parenting arrangements are decided based on the child’s best interests.

Speak with us

Your first 30-minute consultation is free. Call (03) 7020 6542 or contact our team to discuss your circumstances and next steps.

Phone: (03) 7020 6542

Email: info@empowerfamilylaw.com.au

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A contract, not a court order — and why that matters

A Financial Agreement is a contract between the parties, made under Part VIIIA of the Family Law Act 1975 for married couples, or Division 4 of Part VIIIAB for de facto couples. Consent orders, by contrast, are orders of the Court.

That distinction drives most of the practical differences between the two:

Financial Agreement Consent orders
What it is A private contract under the Act An order of the Court
Court involvement when made None — the Court does not review it A Registrar must be satisfied the orders are just and equitable
When it can be made Before, during or after a relationship After separation
How it is enforced As a contract As a court order, with the Court's enforcement powers behind it
Changing it later By agreement, or by a court application to set it aside Only in limited circumstances, under sections 79A or 90SN

Neither is automatically the better choice. A Financial Agreement can cover a future that has not happened yet, which consent orders cannot, and it keeps the arrangement private. Consent orders carry the Court's scrutiny at the time they are made, and the Court's enforcement machinery afterwards.

Legal advice is a precondition, not a formality

You cannot enter into a Financial Agreement without first obtaining legal advice from an Australian lawyer. This is not best practice guidance — it is a requirement of the Act, and each party must have their own independent advice.

The reason is structural. Because no court examines a Financial Agreement when it is made, the independent advice requirement is the main safeguard that each party understood what they were giving up. Agreements where that advice was absent, rushed, or given by a lawyer acting for both sides are the ones most vulnerable to later challenge.

In practice this means an agreement cannot be prepared and signed on the same afternoon. Build in time for each party to receive advice, ask questions, and reflect.

Disclosure underpins both routes

Whichever route you choose, both of you need an accurate picture of the asset pool. Where consent orders are used, each party must set out their financial circumstances in the application and sign a statement that what they have set out is true and correct.

Either way, it is worth satisfying yourself that what the other party has disclosed is accurate rather than taking it on trust — by exchanging taxation returns, payslips, bank statements and superannuation statements. An agreement built on an incomplete picture is an agreement that invites a later challenge, and that is as true of a Financial Agreement as it is of consent orders.

If superannuation is involved

Where a superannuation interest is to be split, everyone who has to do something under the arrangement needs to be on board — and that includes the trustee of the superannuation fund. Dealing with the fund early, and confirming the wording will be accepted, avoids an agreement that cannot actually be implemented.

The Court information on this page reflects the published guidance of the Federal Circuit and Family Court of Australia on formalising a financial agreement, as at 26 October 2026. It is general information only, not legal advice, and does not replace advice about your own circumstances.

When an agreement is worth considering

Financial agreements suit some situations considerably better than others, and the distinguishing feature is usually that the parties want certainty about a future that has not yet happened.

Common circumstances include one party bringing substantially greater assets into a relationship; a second relationship where there are children from a first and an estate to protect; family money, a family business or an expected inheritance where other family members have an interest in the outcome; parties of different ages or at very different career stages; and couples who simply prefer to settle the position privately rather than leave it to be determined later.

Because an agreement can be made before, during or after a relationship, it can also be used to resolve matters after separation without involving the Court at all, which some people prefer for reasons of privacy.

What it cannot do

An agreement about financial matters does not determine arrangements for children. Parenting matters are decided by reference to the child's best interests at the time the question arises, and parties cannot contract out of that. A provision in an agreement purporting to fix parenting arrangements is not effective in the way the parties may expect.

Child support is also dealt with separately, under its own legislation and administered by Services Australia. Where parties want certainty about child support, the instrument is a Limited or Binding Child Support Agreement rather than a financial agreement, and the two have different requirements and different consequences.

Practical steps that make an agreement durable

Most challenges to financial agreements concern the circumstances in which they were made rather than their contents. The steps that reduce that risk are straightforward and mostly about process:

Court information in this section reflects the published guidance of the Federal Circuit and Family Court of Australia, as at 27 October 2026. It is general information only, not legal advice.

How is a financial agreement different from consent orders?

A financial agreement is a contract between the parties made under Part VIIIA of the Family Law Act for married couples, or Division 4 of Part VIIIAB for de facto couples. Consent orders are orders of the Court. That difference drives everything else. No court reviews a financial agreement when it is made, whereas a Registrar must be satisfied that consent orders are just and equitable before making them. A financial agreement can be entered into before, during or after a relationship and can deal with a future that has not happened yet, which consent orders cannot. Consent orders carry the Court's enforcement machinery and can only be varied in limited circumstances under sections 79A or 90SN. Neither is automatically the better choice.

Do we each need our own lawyer?

Yes. You cannot enter into a financial agreement without first obtaining legal advice from an Australian lawyer, and each party must have their own independent advice. This is a requirement of the Act rather than best-practice guidance. The reason is structural: because no court examines the agreement at the time it is made, the independent advice requirement is the principal safeguard that each party understood the effect of what they were signing and what they were giving up. Agreements where that advice was absent, rushed, or given by a lawyer who was in substance acting for both sides are the ones most vulnerable to a later application to set them aside.

How quickly can an agreement be put in place?

Not in a single sitting, and attempting to do so creates the very risk the agreement is meant to remove. Because each party must receive independent legal advice before signing, you need to allow time for both people to be advised, to ask questions and to reflect on what is proposed. Where an agreement is being prepared ahead of a wedding, leaving it to the final days before the ceremony is a familiar source of later argument about pressure and whether the advice was meaningful. Build the time in deliberately: identify the issues early, exchange financial information, allow each party to take advice without a deadline hanging over them, and treat the advice requirement as substance rather than a signature to be collected at the end.

Do we have to disclose all our finances?

You should, whichever route you take. An agreement built on an incomplete picture is an agreement that invites a later challenge, and the party who withheld information is rarely the one who benefits from that outcome. Where consent orders are used, each party must set out their financial circumstances in the application and sign a statement that what they have set out is true and correct. It is worth satisfying yourself that what the other party has disclosed is accurate rather than taking it on trust, by exchanging taxation returns, payslips, bank statements and superannuation statements. The same discipline protects a financial agreement, even though no Registrar reviews it, because the agreement's durability depends on it.

Can an agreement be changed or set aside later?

A financial agreement can be changed by agreement between the parties, or challenged by a court application to set it aside. Final consent orders, by contrast, can only be varied in limited circumstances under sections 79A or 90SN of the Family Law Act. Neither route is a simple matter of changing your mind once circumstances have moved on, and the party seeking to disturb the arrangement generally carries the burden of establishing a basis for doing so. If your circumstances have altered significantly since an agreement was made, for example through the birth of a child, a serious illness or a substantial change in assets, take advice promptly rather than acting on the assumption that the document no longer binds you.

What if superannuation is involved?

Everyone who has to do something under the arrangement must be on board, and that includes the trustee of the superannuation fund, because a splitting order imposes obligations on them. Dealing with the fund early, and confirming that it will accept the wording as drafted, avoids an agreement that cannot actually be implemented, which is a common and avoidable source of delay. Where consent orders are used instead, written notice must be served on the trustee at least 28 days before filing, the trustee has 28 days to object, and proof that they did not object must be filed along with proof of the current value of the interest. Without that proof the Court cannot make the orders sought.

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