Binding Financial Agreements in Australia: The Requirements

A binding financial agreement lets Australian couples set their own property and maintenance arrangements outside the Family Law Act 1975's standard process. It is binding only if strict requirements, including independent legal advice for each party, are met under section 90G.

Western Australia is different for de facto financial matters. Western Australia did not refer de facto property and financial matters to the Commonwealth, so the federal Part VIIIAB provisions described on this page do not govern a de facto property or maintenance claim in Western Australia. Those claims run under the Family Court Act 1997 (WA), which has its own provisions and its own thresholds, including a two-year relationship requirement under section 205Z and declarations of property interests under section 205ZA. If your de facto matter is in Western Australia, work from that Act and not the section numbers used here. Married couples in Western Australia remain under the federal Family Law Act 1975.

This article addresses binding financial agreements under Part VIIIA (married couples) and Part VIIIAB Division 4 (de facto couples) of the Family Law Act 1975. It does not provide document drafting guidance; a binding financial agreement must be prepared and explained by a legal practitioner, and this article describes the legal requirements only, not clause wording.

What a binding financial agreement is, and when it can be made

A binding financial agreement, sometimes informally called a prenup or postnup, is a private agreement that sets out how a couple's property, financial resources and, in some cases, maintenance will be dealt with, made under Part VIIIA of the Family Law Act 1975 for married couples or Part VIIIAB Division 4 for de facto couples. Married couples can make an agreement before the marriage under section 90B, during the marriage under section 90C, or after a divorce order has been made under section 90D. De facto couples have the equivalent options: before the de facto relationship begins under section 90UB, during it under section 90UC, or after it breaks down under section 90UD. A properly made agreement can deal with property division and maintenance without the couple needing to apply to the FCFCOA at all, provided the Act's formal requirements are met.

The independent legal advice requirement

A financial agreement is binding only if the requirements in section 90G are satisfied, and the independent legal advice requirement is the one most commonly at issue when an agreement is later challenged. Section 90G(1)(b) requires each party to have received independent legal advice from a legal practitioner before signing, about the effect of the agreement on that party's rights, and about the advantages and disadvantages, at the time the advice was provided, of making the agreement. Section 90G(1)(c) and (ca) require each party's legal practitioner to have given them a signed statement confirming that advice was provided, and require a copy of each party's statement to have been given to the other party or their practitioner. Each party must use their own, separate legal practitioner; the same lawyer cannot advise both parties, because the advice must be genuinely independent.

The court's discretionary backstop: section 90G(1A) and (1B)

Strict compliance with every formal requirement in section 90G(1) is not always fatal to an agreement's validity. Section 90G(1A) allows a court to still find an agreement binding, despite a technical failure to comply with one or more of the paragraph (1) requirements, if the court is satisfied it would be unjust and inequitable if the agreement were not binding, taking into account the agreement's terms and the circumstances at the time it was made. Section 90G(1B) sets out matters the court may consider in making that decision. This provision exists because rigid, formalistic non-compliance, for example a missing signature on a solicitor's statement where the substance of the advice was genuinely given, should not automatically invalidate an otherwise fair agreement, though a party should never rely on it in place of proper execution.

De facto agreements: section 90UJ

The equivalent independent legal advice requirement for a de facto financial agreement under Part VIIIAB Division 4 is section 90UJ, which mirrors section 90G in substance: each party must receive independent legal advice from a legal practitioner before signing, receive a signed statement confirming that advice, and exchange copies of those statements with the other party. The same discretionary backstop for technical non-compliance that applies to married couples under section 90G(1A)-(1B) has an equivalent application to de facto financial agreements.

When a court can set an agreement aside: section 90K

A binding financial agreement is not immune from challenge simply because the formal requirements were met when it was signed. Section 90K lists the circumstances in which a court may set aside a financial agreement or a termination agreement, including: the agreement was obtained by fraud, including a party's failure to disclose material information; a party entered the agreement to defraud or defeat a creditor, or with reckless disregard of a creditor's interests; the agreement is void, voidable or unenforceable for other legal reasons; a material change in circumstances relating to the care, welfare and development of a child of the relationship has occurred since the agreement was made, and the child, or the party caring for the child, would suffer hardship if the agreement were not set aside; the agreement is impracticable to carry out because circumstances have changed; a party engaged in unconscionable conduct in making the agreement; or unresolved issues relating to superannuation payment flagging or an unsplittable superannuation interest remain. The de facto equivalent is section 90UM.

Why a binding financial agreement is not a substitute for legal advice

This article describes the legal requirements a binding financial agreement must satisfy; it is not a substitute for the independent legal advice each party is legally required to obtain before signing one, and it does not provide clause wording or a template. Because an improperly executed agreement can be challenged years later, often at the point of separation when it matters most, the section 90G, or for de facto couples the section 90UJ, requirements operate as a minimum rather than a formality, and signed practitioner statements are commonly kept with the agreement itself. A financial agreement is also generally reviewed alongside, not instead of, broader estate planning, since it does not itself override superannuation death benefit nominations or a will.

Terminating or replacing an agreement

A binding financial agreement does not necessarily last forever simply because it was validly made. Section 90J allows parties to terminate a financial agreement, generally by making a further agreement, called a termination agreement, that satisfies the same formal requirements, including independent legal advice, as the original agreement. Parties can also choose to enter a new financial agreement that supersedes an earlier one, for example moving from a pre-marriage agreement under section 90B to a fresh agreement during the marriage under section 90C as circumstances change. Because a termination agreement is itself a financial agreement for the purposes of the Act, the same independent legal advice and signed practitioner statement requirements under section 90G apply to it as applied to the original agreement.

Superannuation and financial agreements

A financial agreement can deal with superannuation interests, but only through the specific superannuation agreement provisions in Part VIIIB of the Family Law Act, which must be included in, or accompany, the financial agreement itself rather than dealt with informally. A superannuation agreement made this way can split an existing superannuation interest between the parties, but it remains subject to the same preservation rules as other superannuation, meaning a party's share is generally not accessible as cash until they reach preservation age or another condition of release is met. Fund trustees are entitled to be given relevant information about a superannuation agreement affecting their member's interest.

This page provides general legal information about binding financial agreements in Australia, verified 20 July 2026. It is not legal advice and does not provide agreement wording. A binding financial agreement must be prepared with independent legal advice from a legal practitioner admitted in the relevant Australian state or territory.

For the property rules an agreement typically displaces, see property settlement in Australia. For the de facto framework, see de facto relationships in Australia. For ongoing support, see spousal maintenance in Australia. For the full picture, return to the Australian family law hub.

Frequently Asked Questions

What is a binding financial agreement?

A private agreement, made under Part VIIIA (married couples) or Part VIIIAB Division 4 (de facto couples) of the Family Law Act, that sets out how a couple’s property and, in some cases, maintenance will be dealt with, without the couple needing to apply to the FCFCOA for orders.

When can a married couple make one?

Before the marriage under section 90B, during the marriage under section 90C, or after a divorce order has been made under section 90D. De facto couples have equivalent options at sections 90UB, 90UC and 90UD.

Do both parties need their own lawyer?

Yes. Section 90G(1)(b) requires each party to receive independent legal advice from their own legal practitioner before signing. The same lawyer cannot advise both parties, because the advice must be genuinely independent for the agreement to be binding.

What happens if the independent legal advice requirement was not followed properly?

The agreement may not be binding. Section 90G(1A) and (1B) give a court limited discretion to still treat it as binding despite a technical defect, where it would be unjust and inequitable not to, but this is not guaranteed and should never be relied on instead of proper execution.

Can a de facto couple make a binding financial agreement?

Yes. Sections 90UB, 90UC and 90UD allow de facto couples to make a financial agreement before, during or after their relationship, with an independent legal advice requirement under section 90UJ that mirrors section 90G for married couples.

Can a binding financial agreement be overturned later?

Yes, in defined circumstances. Section 90K allows a court to set aside a financial agreement for reasons including fraud, non-disclosure, unconscionable conduct, a change in circumstances relating to a child’s care causing hardship, or impracticability from changed circumstances. The de facto equivalent is section 90UM.

Does a court review a binding financial agreement before it takes effect?

No. A properly made financial agreement becomes binding without any court approval or review at the time it is signed. A court only becomes involved later if one party applies to have it set aside under section 90K.

Is a binding financial agreement the same as a court order?

No. A financial agreement is a private contract between the parties, made under Part VIIIA or Part VIIIAB Division 4, while consent orders are made by the FCFCOA. Each has different formal requirements and different grounds for later challenge.