A postnuptial agreement in Australia is a legal contract made between a married couple after they've tied the knot. It sets out how assets, finances, and even debts will be divided if the relationship ends—either by separation, divorce, or death.
These agreements are recognised under Australian family law and can be legally binding if certain requirements are met.
Many people think of financial agreements only before marriage (like prenuptial agreements), but it's becoming more common for couples to plan and protect their future during marriage. A postnuptial agreement gives clarity, security, and peace of mind.
Is a Postnuptial Agreement Legally Binding in Australia?
All agreements fall under the Family Law Act 1975 and are officially known as Binding Financial Agreements (BFAs). For a postnuptial agreement to be legally binding, the law requires:
- Both people must sign the agreement.
- Each person must get independent legal advice from separate lawyers.
- The agreement must include a signed statement from each lawyer saying advice was given.
- It must comply with specific legal rules set out in the Family Law Act.
If all of these requirements are met, the court will usually uphold the agreement—unless there is fraud, unfair pressure, or major changes that make the agreement unjust.
Postnuptial agreements are not only for couples with large assets or businesses. Any married couple who wants financial clarity and protection can make one. The goal is to avoid future disputes and ensure everyone is treated fairly.
When Should You Consider a Postnuptial Agreement in a Marriage?
There are many reasons why couples choose to create a postnuptial agreement during their marriage. Some of the most common situations include:
Change in Financial Status: One or both partners receive an inheritance, win the lottery, or build a business after getting married.
Children From a Previous Relationship: A partner may want to protect certain assets for the benefit of children from an earlier marriage or relationship.
Debt Concerns: If one partner has or accumulates significant debt, a postnuptial agreement can protect the other from being legally responsible for it.
Relationship Problems: Couples who go through a rough patch and then reconcile may want to protect themselves in case things change again.
Gifting or Help From Family: If family members provide financial assistance, like paying for a home deposit or giving a property, they may want those funds protected through a postnup.
Even in strong, happy marriages, a postnuptial agreement can act as a clear plan and safety net. It's about preparing for the unexpected—not assuming the worst.
How Does a Postnuptial Agreement Differ From a Prenuptial Agreement Under Australian Family Law?
A lot of people know what a prenuptial agreement (or "prenup") is, but might not be familiar with how it compares to a postnup.
Here's the main difference:
- A prenuptial agreement is made before a couple gets married.
- A postnuptial agreement is made after they are legally married.
Both types are classified as Binding Financial Agreements under Australian law. They follow the same rules and offer the same protections. The main difference is timing—when the agreement is signed.
Prenups are often used when couples want to be upfront about their finances before marriage. Postnuptial agreements, on the other hand, are helpful when life changes happen during the marriage that affect money, property, or family goals.
Sometimes, couples who didn't think of doing a prenup decide later that a postnuptial agreement is a smart move. Others create a postnuptial agreement to update an old prenup, especially if their situation has changed.
Also Read: Can A Binding Financial Agreement Be
Overturned?
What Can Be Included in a Postnuptial Agreement in Australia?
A postnuptial agreement can cover a wide range of financial and property matters. It can be tailored to suit each couple's unique situation. Here are some of the key things a postnup can include:
Division of Property and Assets: Who keeps what if the marriage ends—including homes, cars, investments, superannuation, and more.
Handling of Debts: How loans, credit cards, and other debts will be split.
Spousal Maintenance: Whether either person will pay financial support to the other, and if so, how much and for how long.
Business Interests: How a business will be protected or shared if one partner owns or runs a business.
Inheritance Protection: Keeping certain assets separate for children from a previous relationship or for other family members.
Future Gifts or Windfalls: Planning for any expected gifts or inheritances.
Other Financial Agreements: Any arrangements the couple agrees on, as long as they're legal and fair.
It's important to know that a postnuptial agreement cannot include parenting arrangements for children. Those matters are decided separately by the court or by parenting agreements and orders.
A good postnuptial agreement should be fair, clear, and specific. Vague or one-sided agreements are more likely to be challenged in court. That's why getting legal advice from a qualified family lawyer is essential.
Planning for Peace of Mind: Why Postnuptial Agreements Matter
A postnuptial agreement gives couples the chance to take control of their financial future, reduce the risk of conflict, and build trust by being open about money. It's not about expecting things to fall apart—it's about being prepared, just like writing a will or buying insurance.
Whether you're recently married, blending families, or facing a big change in your financial life, a postnup can offer clarity and confidence moving forward. It's one of the most practical tools couples can use to protect each other and make fair decisions.
Ready To Protect Your Future?
Do you and your partner need clarity about your financial future? At Justice Family Lawyers, we specialise in postnuptial agreements that are tailored, fair, and legally secure.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
