Should You Get a Pre-Nuptial Agreement Before Getting Married

It is a question more couples are asking, and for good reason. As people marry later in life, bring more assets into relationships, and increasingly have children from previous relationships, the idea of having a financial agreement in place before the wedding makes practical sense for a growing number of people.

But pre-nuptial agreements in Australia work quite differently from what many people assume, and understanding the legal framework before proceeding is essential.

In Australia They Are Called Binding Financial Agreements

The term pre-nuptial agreement is widely understood but it is not the legal term used in Australia. Under the Family Law Act these agreements are known as Binding Financial Agreements or BFAs. They can be entered into before a marriage, during a marriage, or after separation. They are also available to de facto couples, not only those who are married.

A BFA does not need court approval to take effect. However, for a pre-nuptial agreement to be legally binding, both parties must receive independent legal advice from a qualified lawyer before signing. This is a strict legal requirement. Agreements that were signed without it have been overturned by Australian courts.

Why Many Law Firms Will Not Prepare Them

Binding Financial Agreements are technically complex and carry professional risk for the drafting lawyer. A poorly prepared agreement can be challenged and set aside, which exposes the drafting firm to a professional liability claim. As a result, many family law firms simply choose not to offer this service.

Just Family Law continues to prepare BFAs because they believe people have a legitimate right to protect their assets and deserve specialist legal support to do it properly. The firm follows the evolving case law in this area closely and has the experience needed to prepare agreements that are carefully structured and defensible.

What the Agreement Can Cover

A well-drafted BFA can set out how assets brought into the relationship will be treated if it ends, how property acquired during the relationship will be divided, whether either party will receive spousal maintenance, and how inheritances will be dealt with. They are particularly useful where one party has a business, significant assets, or children from a previous relationship. BFAs are equally available to de facto couples, who carry the same rights and obligations as married couples under Australian law after two years of cohabitation.

What It Cannot Do

A BFA cannot make binding decisions about parenting arrangements or child support. Courts also retain the power to set aside agreements that were signed under duress, without proper legal advice, or where enforcement would cause serious injustice to one party. This is why the quality of the drafting and the legal advice received at the time of signing matters so much.

Just Family Law's expertise in property and financial settlements means they understand exactly how these agreements interact with the broader settlement framework and how to structure them in a way that minimises the risk of a future challenge.

Talk to a Specialist Before You Sign Anything

Whether you want to initiate a pre-nuptial agreement or you have been asked to sign one, getting proper independent legal advice before committing to anything is not optional. The consequences of signing an agreement without adequate advice can follow you for years. It is a step that should never be taken lightly or without a specialist lawyer reviewing the document on your behalf.

One of the most critical reasons for this is that courts heavily scrutinize pre-nuptial agreements in the event of a separation. If a judge discovers that you signed the document without your own dedicated attorney—or worse, that you shared the same lawyer as your partner—the entire agreement could be thrown out as legally invalid. A specialist attorney ensures you fully understand the long-term impact of what you are signing, explicitly pointing out what rights you might be waiving, such as future claims to asset appreciation or spousal support.

Beyond the legal safeguards, independent counsel helps strip the intense emotion out of what can be a deeply uncomfortable conversation. Discussing the potential end of a marriage before it even begins is inherently stressful, but having a professional guide you ensures that fairness prevails over pressure or a desire to just "get it over with." Ultimately, securing your own legal representation isn’t an act of distrust; it is a mature, practical step toward establishing absolute financial transparency and protecting both of your futures.

Just Family Law offers a free 15-minute phone consultation to help you understand your rights and options. Call (03) 9793 7888 to arrange yours.