Marriage is a personal commitment, but it also creates important financial responsibilities. A postnuptial agreement can help married couples in Australia decide how they want to manage certain financial matters if their relationship ends. Whether you own a business, have received an inheritance, hold significant assets or simply want greater financial clarity, understanding these agreements can help you make informed decisions.
Many couples believe financial agreements are only available before marriage. However, Australian family law also allows married spouses to enter into financial agreements during their marriage, subject to strict legal requirements.
A properly prepared agreement may reduce uncertainty and help couples avoid some future property disputes. Nevertheless, it is not suitable for every relationship, and no agreement is immune from legal challenges.
This guide explains how postnuptial agreements work in Australia, what they can cover, the legal requirements involved and the practical issues to consider before signing.
What Is a Postnuptial Agreement?
A postnuptial agreement is a written financial agreement made by spouses after they marry. In Australia, it can set out how certain assets, debts and financial support will be handled if the marriage ends. To be binding, it must meet strict legal rules, including independent legal advice for each spouse.
Table of Contents
- Understanding financial agreements in Australia
- Legal requirements under the Family Law Act
- Prenuptial, postnuptial and separation agreements compared
- Assets and financial matters an agreement can cover
- Who may benefit from an agreement?
- How to prepare an agreement: Step-by-step checklist
- Financial disclosure and independent legal advice
- Costs and preparation timeframes
- When an agreement can be challenged
- Financial agreements versus consent orders
- Australian family law changes from June 2025
- Superannuation, tax and estate planning considerations
- Practical examples for Australian couples
- Common mistakes and important limitations
- People Also Ask
- Frequently asked questions
- Conclusion
1. Understanding Postnuptial Agreements in Australia
A postnuptial agreement is often described as a financial contract signed after a wedding.
In Australian legal terminology, the relevant document is generally called a financial agreement, sometimes referred to as a binding financial agreement or BFA.
The distinction matters because the words written at the top of a document do not determine whether it is legally binding.
Instead, the agreement must satisfy the requirements of the legislation that applies to the couple.
For married couples, the main law is the Family Law Act 1975 (Cth).
A financial agreement can help spouses decide how their property, financial resources and certain maintenance obligations will be treated if their marriage breaks down.
For example, a couple might agree that one spouse will retain an investment property acquired before marriage. Alternatively, they may decide how a family business will be valued and dealt with if they separate.
However, signing an agreement does not automatically change property ownership.
If one spouse owns a house in their name, the agreement does not necessarily transfer that house to the other spouse. A separate legal transfer may be required.
Likewise, an agreement does not remove a person’s obligations to a bank simply because the spouses have agreed that one of them will be responsible for a loan.
Therefore, couples need to distinguish between their private arrangements and the rights of other parties.
Why do married couples consider financial agreements?
Financial circumstances can change significantly during marriage.
A spouse may start a business, receive an inheritance, purchase property or take time away from paid employment to care for children.
As a result, an arrangement that seemed straightforward at the beginning of the relationship may become more complicated.
A postnuptial agreement gives couples an opportunity to discuss those changes and document their shared intentions.
The goal should be clarity and informed consent, rather than giving one spouse an unfair advantage.
2. How Does a Postnuptial Agreement Work Under Australian Law?
In Australia, financial agreements made during marriage are generally governed by section 90C of the Family Law Act 1975.
Section 90C allows married spouses to make a written financial agreement dealing with relevant property, financial resources and maintenance matters.
Importantly, the legislation permits an agreement during marriage whether the marriage has broken down or not.
Therefore, a couple does not need to be planning a divorce to discuss one.
The precise legal requirements can be checked in the Australian Government’s official Family Law Act 1975.
Section 90C: Agreements during marriage
Under section 90C, the agreement must identify the relevant financial matters and be expressed as an agreement under that section.
It can address how specified assets and financial resources are to be dealt with if the marriage ends.
It can also address maintenance of either spouse, subject to further legislative rules.
However, an existing binding financial agreement covering the same matters must be considered before preparing a new one.
For example, if spouses signed a financial agreement before their wedding, they should not assume that a second document can simply be added without reviewing the original.
A solicitor must determine how the agreements interact and whether formal termination or replacement is needed.
Section 90G: When an agreement is binding
Section 90G sets out important binding requirements.
In general, these include:
- The agreement must be signed by all parties.
- Before signing, each spouse must receive independent legal advice about the agreement’s effect on their rights and its advantages and disadvantages.
- Each spouse must obtain a signed statement from their legal practitioner confirming that the required advice was provided.
- A copy of each advice statement must be given to the other spouse or their legal practitioner.
- The agreement must not have been terminated or set aside by a court.
There is a limited statutory mechanism through which a court may declare certain agreements binding despite defects in specified advice-related requirements.
However, couples should never rely on that exception as a substitute for proper legal preparation.
Does an agreement take effect immediately?
This is an important distinction.
A financial agreement may be binding when the relevant legal requirements are met. However, section 90DA provides that certain property provisions dealing with the breakdown of the marriage do not take effect until a qualifying separation declaration is made, or until circumstances such as divorce or death remove that requirement.
Consequently, the date an agreement is signed and the date particular clauses become operative may differ.
This is one reason why generic templates can be risky.
A qualified Australian legal practitioner should explain when the relevant provisions become effective.
3. Postnuptial Agreement vs Prenuptial Agreement vs Separation Agreement
Financial agreements are available at different stages of a marriage.
Although their purposes can overlap, the relevant legal provisions differ.
| Agreement type | When it is made | Main purpose | Australian legal provision |
| Prenuptial financial agreement | Before marriage | Plans how specified finances will be handled if the marriage ends | Section 90B |
| Postnuptial financial agreement | During marriage | Records financial arrangements after the wedding, including where spouses have separated | Section 90C |
| Financial agreement after divorce | After a divorce order is made | Deals with financial matters following divorce | Section 90D |
| Consent orders | Usually after separation | Formalises agreed property arrangements through court orders | Relevant property settlement provisions |
A postnuptial agreement is particularly useful to understand because many couples acquire substantial assets only after marriage.
For instance, a couple may marry while renting and then purchase a family home several years later.
Alternatively, one spouse may receive shares in a family company during the marriage.
In either situation, financial planning may become more complex.
Is a postnuptial agreement the same as divorce?
No.
A postnuptial agreement does not dissolve a marriage.
Divorce is a separate legal process. Likewise, having a financial agreement does not mean the couple must separate.
Instead, the agreement addresses selected financial rights and obligations under the relevant law.
The couple may remain married for many years after signing.
4. What Can a Postnuptial Agreement Cover?
The scope of an agreement depends on the couple’s circumstances and the legislation.
Therefore, a lawyer should identify both what the couple wants to achieve and what can legally be included.
Residential and investment property
An agreement may address the future treatment of real estate.
This could include:
- The family home
- Investment properties
- Land acquired before marriage
- Properties purchased during marriage
- Future property purchases
- Equity and mortgage-related arrangements
For example, one spouse may have owned an apartment in Melbourne before the wedding.
The couple could seek advice about whether the agreement should preserve that spouse’s interest or provide a different arrangement if the marriage ends.
However, any proposal should consider mortgage liabilities, ownership records and contributions made during the marriage.
Savings, shares and investments
Financial agreements can also address selected investment assets.
These might include bank savings, managed funds, listed shares or other financial interests.
Where an asset changes in value, the agreement should explain how that change will be treated.
A fixed dollar amount and a percentage-based allocation can produce very different outcomes.
Therefore, the drafting needs to reflect the couple’s intentions.
Businesses and professional interests
Business ownership can make family finances more complicated.
For example, a spouse might own a construction company, consultancy, medical practice or online business.
The agreement may address how certain business interests will be treated following separation.
However, company assets do not automatically become personal assets of a shareholder.
Trusts, company structures, shareholder obligations and third-party rights may need separate consideration.
Business valuation can also be important.
A practical agreement should address relevant ownership interests, valuation methods and potential changes in business value rather than relying on vague descriptions.
Inheritances and family gifts
Some couples consider a postnuptial agreement after one spouse receives a significant inheritance or gift.
For instance, parents might help their married child purchase a property in Brisbane.
The couple may wish to clarify whether that assistance is a gift to one spouse, a gift to both spouses or a loan.
However, a financial agreement cannot independently establish that a third-party loan or gift arrangement is genuine.
Supporting documents may be required.
Furthermore, receiving an inheritance does not automatically mean it must be excluded from every possible family law property settlement.
The circumstances and applicable legal framework matter.
Debts and financial liabilities
Financial agreements may also address how debts are allocated between spouses.
These might include personal loans, credit cards, investment loans and certain business-related liabilities.
For example, spouses could agree that one will be responsible for a particular loan following separation.
Nevertheless, that arrangement does not automatically release the other spouse from a joint obligation to the lender.
The bank’s contractual rights remain relevant.
Spousal maintenance
Spousal maintenance refers to financial support that one spouse may provide to the other in certain circumstances.
A postnuptial agreement can address maintenance arrangements, but special rules apply.
Sections 90E and 90F of the Family Law Act contain relevant limitations.
For example, maintenance provisions must identify the relevant person and specify the required amount or value.
Additionally, certain circumstances may prevent an agreement from excluding the court’s power to make maintenance orders.
Consequently, maintenance clauses need careful legal drafting.
Children and parenting arrangements
A financial agreement should not be treated as a substitute for appropriate parenting arrangements.
Decisions about children’s care and parenting are governed by separate family law principles, including the child’s best interests.
Child support also has its own legal framework.
Therefore, couples should seek specific advice if they want to address child-related financial matters rather than assuming a general property clause will be sufficient.
5. Who May Benefit from a Postnuptial Agreement?
A postnuptial agreement is not necessarily appropriate for every married couple.
However, it may be worth discussing in several circumstances.
Couples with substantial property
Couples who hold multiple properties or significant investments may want greater clarity about future financial arrangements.
This can be particularly relevant where both spouses owned assets before marriage.
Clear documentation may make future discussions easier.
However, the agreement must still meet the legal requirements.
Business owners and entrepreneurs
A business owner’s income and assets may change considerably during marriage.
For instance, a small Australian technology company might grow into a valuable enterprise.
The spouses may wish to discuss what happens to their respective financial interests if they separate.
A financial agreement may form part of that planning, although it cannot guarantee that a business will be unaffected by all future disputes.
Couples entering a second marriage
Second marriages may involve children from previous relationships, existing property and estate planning commitments.
Therefore, spouses may wish to clarify their financial intentions.
For example, one spouse may want to retain a property acquired before the second marriage.
However, a financial agreement alone may not resolve inheritance, succession or family provision issues.
Estate planning advice is often necessary as well.
Couples receiving family wealth
An inheritance, family loan or substantial financial gift may prompt a discussion about financial agreements.
The reason is not simply to protect an asset.
It may also be important to establish whether money was provided to one person, both spouses or a separate entity.
Good records can reduce later uncertainty.
Couples reconsidering financial arrangements
Some spouses reconsider their financial arrangements after major life changes.
These may include the birth of a child, a career change, a property purchase or reconciliation following separation.
In such cases, an agreement may provide a structured way to discuss financial responsibilities.
However, timing, bargaining power and financial dependence can affect whether entering into the agreement is appropriate.
Both spouses should have genuine freedom to make their own decisions.
6. How to Make a Postnuptial Agreement in Australia: 10-Step Checklist
Preparing a financial agreement involves more than downloading a template and signing it.
The following checklist outlines a practical preparation process.
These are administrative and planning steps. They do not replace independent legal advice from an Australian legal practitioner.
1. Identify the purpose of the agreement
Begin by explaining why the agreement is being considered.
Is the goal to address an inherited property, clarify business ownership or plan financial arrangements in case of separation?
A clear purpose helps the lawyers identify the relevant issues.
2. Record the current financial position
Prepare a summary of assets, liabilities, income and relevant financial resources.
Include real estate, investments, superannuation, business interests and outstanding debts.
Both spouses should review their own information carefully.
3. Collect supporting documents
Gather recent bank statements, mortgage documents, investment records and other relevant financial information.
Where businesses or trusts are involved, company records and trust documents may also be needed.
Accurate documents make the review more useful.
4. Consider future financial changes
Think about possible inheritances, children, career breaks and future property purchases.
For example, an agreement that only considers current earnings may become unsuitable if one spouse later stops working to care for children.
The objective is to consider foreseeable changes.
5. Obtain separate legal representation
Each spouse should engage their own Australian legal practitioner for independent advice.
One solicitor cannot provide the required independent advice to both sides.
This protects each person’s opportunity to understand the agreement.
6. Discuss suitable terms
The spouses and their lawyers can identify the terms they wish to consider.
These might address ownership, future acquisitions, valuation methods or maintenance.
However, each spouse should be able to raise concerns without pressure.
7. Prepare and review the draft
A solicitor can prepare or review the document against the relevant legislative requirements.
Both parties should carefully examine the definitions, schedules and financial terms.
Ambiguous clauses should be clarified before signing.
8. Receive independent legal advice
Each spouse must receive the required legal advice before signing.
This includes an explanation of how the agreement affects their rights and its advantages and disadvantages.
The advice should relate to the actual agreement being signed.
9. Complete signing and advice documentation
The parties must follow the relevant execution requirements.
The lawyers’ signed advice statements and the required exchange of copies are also important.
Any missing or incorrect document should be addressed before the process is considered complete.
10. Store records and review future changes
Keep the signed agreement and associated legal advice statements securely.
Also retain relevant financial schedules and supporting material.
If circumstances change substantially, seek legal advice about whether the agreement remains suitable.
7. Financial Disclosure and Independent Legal Advice
Two important parts of preparing a postnuptial agreement are accurate financial information and independent legal advice.
Why financial disclosure matters
A meaningful financial agreement depends on both spouses understanding the financial circumstances relevant to their decisions.
For example, consider a couple discussing an investment portfolio.
If one spouse believes the portfolio is worth $100,000 when it is actually worth $800,000, that misunderstanding may significantly affect negotiations.
Material non-disclosure can also have legal consequences.
Under section 90K, fraud, including non-disclosure of a material matter, is one of the grounds on which a court may set aside a financial agreement.
However, this does not mean every missing document automatically invalidates an agreement.
The legal significance depends on the facts and applicable law.
A practical approach is to provide accurate financial information, identify uncertain valuations and keep supporting records.
Why must both spouses receive legal advice?
Independent advice is a central requirement for binding financial agreements.
According to the Federal Circuit and Family Court of Australia’s guidance on financial agreements, each party must obtain independent legal advice about the prescribed matters before entering into an agreement.
This advice helps each spouse understand what rights they may be changing or giving up.
It also allows each person to ask questions privately.
For example, one spouse may be concerned that a proposed arrangement does not account for years spent caring for children.
Their solicitor can explain the potential consequences and discuss whether alternative terms should be considered.
Importantly, obtaining legal advice does not mean the person must sign.
A spouse remains free to decline an agreement.
Can both spouses use the same lawyer?
The required legal advice must be independent.
Therefore, spouses should have separate legal practitioners advising them on their individual positions.
One law firm may help prepare the initial document for a client, while the other spouse obtains advice from an independent practitioner.
The precise arrangements should be managed by the solicitors involved.
8. How Much Does a Postnuptial Agreement Cost in Australia?
There is no single fixed legal fee for every postnuptial agreement in Australia.
The cost depends on the work required.
A straightforward agreement concerning a limited number of assets may involve less work than an agreement covering several companies, trusts and properties.
However, even relatively simple arrangements require proper legal consideration.
Factors that may affect legal fees
The overall cost may depend on:
- The complexity of the asset and debt structure
- The number of documents requiring review
- Whether property or business valuations are needed
- The length and detail of the agreement
- The number of drafting revisions
- Negotiations between the spouses
- Independent legal advice fees for both parties
- Specialist taxation or financial advice
There is generally no court approval process or court filing fee simply to make a section 90C financial agreement.
However, separate transactions and professional services may involve additional costs.
How long does preparation take?
There is no universal preparation period.
The process may be shorter where both spouses have organised financial records and agree on the proposed terms.
By contrast, detailed business valuations or significant disagreements may extend negotiations.
Rather than relying on an advertised timeframe, ask the solicitor for an explanation of the expected stages.
It is also sensible to request a written costs disclosure and an estimate of professional fees.
The lowest initial quote is not always the most useful comparison.
Instead, consider the services included, the solicitor’s relevant experience and whether further negotiations will be charged separately.
9. Can a Postnuptial Agreement Be Challenged or Set Aside?
Yes.
A postnuptial agreement can be challenged in certain circumstances.
However, a court will not necessarily set one aside simply because a spouse later regrets signing it.
Section 90K of the Family Law Act identifies specific grounds.
Fraud or material non-disclosure
An agreement may be vulnerable if it was obtained through fraud.
This can include withholding a material financial matter.
For example, deliberately concealing a substantial asset during negotiations may raise serious concerns.
Duress, undue influence or other contractual problems
An agreement may also be challenged under relevant contract and equitable principles.
These may include circumstances involving duress, undue influence or another reason that makes the document void, voidable or unenforceable.
Therefore, the process leading to signing matters.
A person should have a genuine opportunity to consider the terms and obtain independent advice.
Unconscionable conduct
Section 90K expressly addresses unconscionable conduct connected with making a financial agreement.
This involves more than a person simply making a poor bargain.
The relevant circumstances and conduct must be assessed under the law.
A substantial imbalance between the spouses may raise concerns, particularly when combined with pressure, vulnerability or exploitation.
Significant changes involving children
A material change in circumstances relating to the care, welfare and development of a child may also be relevant.
However, the legislation requires further conditions, including the specified hardship consequences.
The birth of a child does not automatically cancel every existing agreement.
Impracticability
An agreement may be set aside where circumstances arising after it was made mean that carrying out all or part of it has become impracticable.
This is a legal threshold.
It is not the same as finding the terms inconvenient or financially disappointing.
Problems involving creditors or superannuation
The legislation also contains grounds involving attempts to defeat creditors and certain superannuation issues.
For example, an agreement should not be treated as a way to move assets beyond the reach of legitimate creditors.
The key lesson: Legal validity depends on both the agreement’s terms and the circumstances in which it was created.
Proper drafting, disclosure and independent advice can reduce some risks, but cannot guarantee that an agreement will never be challenged.
10. Postnuptial Agreement vs Consent Orders
Married couples who have separated may have more than one way to formalise their financial arrangements.
Two important options are binding financial agreements and consent orders.
Consent orders are orders made by a court to formalise terms agreed by the parties.
Unlike a financial agreement, consent orders involve a court process.
| Feature | Postnuptial financial agreement | Consent orders |
| Available while happily married | Yes | Not ordinarily used for future separation planning |
| Independent legal advice | Required under the financial agreement rules | Strongly recommended but not generally mandatory |
| Court approval | Not normally required | Required |
| Court considers whether proposed property orders are just and equitable | No routine court approval assessment | Yes |
| Can address financial arrangements | Yes | Yes, within the court’s powers |
| Can be challenged later | Yes, on relevant legal grounds | Yes, but generally only on limited grounds |
| Suitable for advance financial planning | Potentially | Usually not the appropriate mechanism |
Which option is better?
There is no universal answer.
For a married couple planning arrangements while their relationship continues, a financial agreement may be the relevant option.
However, separated spouses who have reached a property settlement may wish to compare a binding financial agreement with consent orders.
Consent orders can provide finality through the court process.
A financial agreement may offer flexibility but requires close attention to statutory conditions.
The right option depends on the couple’s objectives, assets, financial information and personal circumstances.
11. Do Australia’s 2025 Family Law Changes Affect Postnuptial Agreements?
Australian family property law changed on 10 June 2025.
The changes introduced a clearer statutory framework for determining property settlements and expressly addressed the economic impact of family violence, among other matters.
According to the Australian Government’s Attorney-General’s Department fact sheet on the June 2025 property reforms, courts considering property settlements examine assets and liabilities, contributions, current and future circumstances, and whether proposed orders are just and equitable.
The reforms also placed the duty of disclosure for relevant post-separation financial disputes into the Family Law Act.
What does this mean for married couples?
The reforms are important when couples consider the potential financial consequences of separation.
For example, unpaid caring responsibilities, contributions to family welfare and future financial needs may be relevant to a court-ordered property settlement.
Economic effects of family violence may also need to be considered.
However, these changes do not automatically cancel or rewrite a binding postnuptial agreement.
Financial agreements remain subject to their own legal requirements.
Therefore, spouses should ask their lawyers to explain both the financial agreement framework and any rights they may otherwise have under Australian property settlement law.
12. Special Considerations: Superannuation, Tax and Estate Planning
Some assets require more detailed planning than an ordinary bank account.
This is especially true when substantial superannuation, company interests or property transfers are involved.
Postnuptial agreements and superannuation
Superannuation is an important consideration for Australian married couples.
A financial agreement can include a superannuation agreement where the relevant legal requirements are met.
However, superannuation splitting has its own rules under the Family Law Act and related regulations.
For example, a valid splitting arrangement may require specific information, documents and steps involving the fund trustee.
Furthermore, dividing a superannuation interest does not normally mean the recipient can immediately withdraw the money.
Superannuation remains subject to applicable preservation rules.
Therefore, spouses should not assume that a general clause stating that superannuation will be shared equally is sufficient to create an effective split.
Taxation and property transfer considerations
A financial agreement does not automatically remove tax obligations.
For example, a transfer involving investment property may raise capital gains tax questions.
Certain family law-related transfer concessions or rollovers may be available if the legal conditions are satisfied.
State and territory transfer duty rules may also be relevant.
However, eligibility depends on the transaction and applicable law.
Therefore, legal and tax advice should be obtained before transferring significant assets.
Wills and estate planning
A postnuptial agreement should also be considered alongside existing wills and estate planning documents.
For instance, a couple may wish to clarify what happens to certain assets if they separate.
However, arrangements following death raise separate estate law questions.
Under section 90H, a binding financial agreement can continue to operate despite a party’s death and bind their legal personal representative.
Nevertheless, that does not mean the agreement necessarily resolves every estate or family provision issue.
A coordinated estate planning review is sensible.
Overseas assets and international marriages
Some Australian couples own property overseas or have financial connections with other countries.
A financial agreement made under Australian law may not have the same effect in every foreign jurisdiction.
Similarly, an agreement created overseas is not automatically enforceable as an Australian binding financial agreement.
International legal advice may be necessary.
A note about de facto relationships
This article primarily concerns married couples.
Financial agreements are also available to many de facto couples under Part VIIIAB of the Family Law Act.
However, different provisions apply, and Western Australia has a separate state-law framework for many de facto financial matters.
Therefore, unmarried couples should not assume that section 90C or the requirements discussed for marriage apply directly to them.
13. Practical Postnuptial Agreement Examples for Australian Couples
The following hypothetical situations illustrate issues that may arise. They are not real client case studies or predictions of legal outcomes.
Example 1: Protecting a business interest in Melbourne
A married couple lives in Melbourne.
One spouse established a consulting company before marriage. Five years later, the business has increased substantially in value.
The couple wants to understand what could happen to the business if they separate.
They may consider a financial agreement addressing the relevant shareholding interests, valuation method and agreed financial arrangements.
However, both spouses should understand the proposal’s effect on their rights.
Any company obligations and third-party interests would also need attention.
Example 2: Receiving an inheritance in Sydney
A spouse inherits a residential property from a parent.
The couple intends to continue living together but wants clarity about how the inheritance will be treated if their marriage ends.
A postnuptial agreement may be one option.
However, their solicitors would also need to consider ownership, existing debts, financial contributions and the proposed terms.
The agreement should not be assumed to provide automatic protection in every future circumstance.
Example 3: Planning around children’s needs in Brisbane
A couple has two young children.
One spouse plans to leave full-time employment to provide care.
The couple wants to understand how that decision could affect their future finances.
An agreement may address selected property and maintenance matters.
However, the spouses need to consider the financial implications of reduced earnings, future needs and possible changes in caring responsibilities.
A document focused solely on current income may not adequately reflect their circumstances.
What these examples show
The value of financial planning is not simply in naming who owns an asset.
It is in understanding how the proposed arrangements may operate when circumstances change.
For that reason, financial agreements should be tailored to the people signing them.
14. Common Postnuptial Agreement Mistakes to Avoid
Several avoidable mistakes can create confusion or legal risk.
Using an overseas template
Online templates may refer to foreign laws or legal concepts that do not apply in Australia.
For example, an American-style postnuptial contract may not satisfy the requirements of section 90C and section 90G.
A generic document should never be assumed to be binding simply because both spouses sign it.
Failing to identify important assets
An incomplete financial picture can undermine informed decision-making.
For instance, a spouse may overlook company interests, trust arrangements or significant liabilities.
Therefore, proper financial preparation matters.
Signing under pressure
A spouse who feels pressured to sign may not be making a genuinely independent decision.
This can be especially concerning where there is financial control, intimidation or family violence.
In such circumstances, personal safety and independent legal advice should take priority over completing the document.
Ignoring future circumstances
An agreement may be drafted when the spouses have no children and similar incomes.
Years later, one spouse may have significant caring responsibilities and reduced earning capacity.
While not every change makes an agreement invalid, it can affect whether the original arrangements remain suitable.
Assuming property protection is guaranteed
A financial agreement does not provide an unconditional guarantee against every claim.
Courts can set agreements aside on relevant statutory grounds.
Third-party rights and separate legal obligations may also remain.
Making informal changes
Spouses sometimes assume they can change a signed financial agreement by exchanging emails or adding a handwritten note.
However, terminating or replacing a binding agreement requires compliance with the relevant law.
Section 90J sets out the formal termination mechanisms for marital financial agreements.
Therefore, a proposed change should be reviewed by the parties’ solicitors.
Failing to review connected documents
Financial agreements may interact with wills, superannuation arrangements, loan agreements and company records.
Consequently, reviewing only the financial agreement may leave important issues unresolved.
15. People Also Ask: Postnuptial Agreement Australia
Can you get a postnuptial agreement after marriage in Australia?
Yes. Section 90C of the Family Law Act allows spouses to enter into a financial agreement during marriage, including after they have separated but before a divorce order is made. The agreement must meet the relevant legal requirements to be binding.
Are postnuptial agreements legally binding in Australia?
They can be legally binding if they satisfy the applicable statutory requirements. However, courts may set agreements aside in certain circumstances, including fraud, specified forms of misconduct or other recognised legal grounds.
Do both spouses need separate lawyers?
Both spouses must receive independent legal advice from Australian legal practitioners about the required matters before signing. In practice, this means each spouse needs their own independent legal adviser.
Can a postnuptial agreement protect an inheritance?
An agreement may address how an inheritance will be treated if the marriage ends. However, the result depends on the terms, financial circumstances, legal validity and any successful future challenge.
What happens if one spouse refuses to sign?
A spouse cannot be forced to enter into a postnuptial agreement. If agreement cannot be reached, the couple may need to explore other financial planning options and obtain advice about their existing legal rights.
16. Frequently Asked Questions About Postnuptial Agreements
1. Can a postnuptial agreement cover assets that have not yet been purchased?
A financial agreement can address certain future property and financial resources.
For example, spouses may wish to include arrangements for investment property they expect to acquire later.
However, the provisions must fit within the relevant legislation and be drafted clearly.
A solicitor should consider how future assets will be identified, valued and dealt with.
The agreement should also distinguish between future assets that are specifically contemplated and assets that may arise in unexpected circumstances.
2. What happens if we sign an agreement and later move overseas?
Moving overseas does not necessarily mean an Australian financial agreement stops operating.
However, international legal issues may arise if the spouses later divorce or seek property orders in another country.
Foreign courts may apply different laws and may not recognise the Australian agreement in the same way.
Therefore, couples with international connections should seek legal advice in the relevant jurisdictions, particularly where valuable overseas assets are involved.
3. Can a postnuptial agreement deal with unequal superannuation balances?
Yes, superannuation interests may be addressed through an appropriately prepared financial agreement and superannuation agreement.
For example, one spouse may have accumulated much more superannuation because the other took time away from paid employment.
However, any proposed split must meet the specific legal requirements.
The parties may also need information from superannuation funds and assistance with the required administrative steps.
An agreement cannot simply disregard the relevant superannuation legislation.
4. Does a postnuptial agreement become invalid when one spouse dies?
Not automatically.
Section 90H of the Family Law Act provides that a binding financial agreement continues to operate despite the death of a party and can bind that party’s legal personal representative.
However, the agreement’s effect will depend on its terms and the applicable law.
Estate administration, wills and potential family provision claims may raise additional issues.
For that reason, couples should seek coordinated family law and estate planning advice.
5. Can a postnuptial agreement be changed after both spouses sign it?
A binding financial agreement cannot necessarily be changed through an informal amendment.
Under section 90J, parties may terminate an existing marital financial agreement through an appropriately prepared termination agreement or by including a termination provision in a new qualifying financial agreement.
The required formalities and legal advice must be considered.
Therefore, a couple wishing to change its arrangements should arrange a legal review rather than altering the original document without advice.
This is particularly important after a major change involving property, employment, children or financial resources.
17. Conclusion: Understanding Your Financial Agreement Options
A postnuptial agreement can provide married couples in Australia with a structured way to plan certain financial arrangements.
It may be relevant where spouses own businesses, receive inheritances, hold substantial property or want greater clarity about their financial future.
However, an agreement should never be treated as a simple asset-protection guarantee.
Its legal effect depends on the relevant legislation, the terms, independent legal advice and the circumstances in which it was created.
A carefully considered agreement should reflect both spouses’ informed decisions and take account of their financial position.
Before signing, it is important to understand what rights may be affected, whether the proposed arrangements are suitable and what alternatives are available.
Speak With Galea & Faustin Solicitors
If you are considering a postnuptial agreement, obtaining professional legal advice is an important starting point.
Galea & Faustin Solicitors provides family law services involving financial agreements, including drafting and reviewing arrangements made before, during or after a relationship.
For guidance on your circumstances, discuss your financial agreement options with Galea & Faustin Solicitors.
Understanding your rights before signing can help you make informed decisions about your financial future.
Legal information disclaimer: This article provides general information about Australian family law and is not legal advice. Individual circumstances, legislation and court decisions can affect legal rights and obligations. Readers should obtain independent advice from a qualified Australian legal practitioner before preparing, signing, changing or relying on a financial agreement.