Marriage is built on love and trust, but even the strongest relationships can benefit from a little legal clarity. That’s where postnuptial agreement comes in.
So, what is a postnuptial agreement in Australia? It’s a legally binding contract made after marriage that lets couples decide how their assets, debts and financial matters will be handled if they ever separate. Officially known as a binding financial agreement (BFA), it gives married couples the power to make private, tailored arrangements without relying solely on the Family Court.
Whether you want to safeguard your assets, reduce the risk of disputes or simply have peace of mind about the future, understanding how postnuptial agreements work can help you make informed decisions about your marriage. Read on to learn what they cover, how they’re made and why more Australian couples are choosing them.
Quick Overview: What Is a Postnuptial Agreement?
A postnuptial agreement is a written financial agreement entered into by spouses after marriage. In Australia, it is legally recognised as a binding financial agreement under the Family Law Act 1975. It allows couples to set out how their property, superannuation, debts and spousal maintenance will be handled in the event of separation or divorce.
What Can a Postnuptial Agreement Cover?
Postnuptial agreements can cover a broad range of financial matters, including:
- Division of property, including real estate, cars, savings and investments
- Ownership of business assets or family trusts
- Responsibility for debts and liabilities
- Treatment of superannuation entitlements
- Terms for spousal maintenance, including lump sum payments or ongoing support
- Management of inheritances or future windfalls
Agreements can be tailored to suit the couple’s unique circumstances, provided they comply with Australian family law requirements.
Who Should Consider a Postnuptial Agreement?
While postnuptial agreements are not for everyone, they are particularly useful for couples who:
- Married without a prenuptial agreement but now want financial certainty
- Are in blended families and want to protect children’s inheritance rights
- Own or operate a business
- Have received a significant inheritance or gift
- Want to avoid costly litigation in case of separation
Even in stable relationships, postnuptial agreements offer peace of mind and clarity.
Are Postnuptial Agreements Legally Binding in Australia?
Yes, postnuptial agreements are legally binding if executed correctly. To be enforceable under the Family Law Act 1975, a binding financial agreement must:
- Be in writing and signed by both parties
- Include full financial disclosure by each spouse
- Be made voluntarily (no duress, coercion or undue pressure)
- Comply with public policy and not be grossly unfair
- Include a certificate of independent legal advice from separate lawyers for each party
Failing to meet these requirements could result in the agreement being set aside by the court.
When Can a Postnuptial Agreement Be Set Aside?
The Family Court can declare a BFA invalid if:
- One party did not receive proper legal advice
- There was fraud, misrepresentation or hidden assets
- The agreement is unconscionable or significantly unfair
- Circumstances have changed so drastically (e.g., a child’s birth or illness) that enforcing the agreement would cause hardship
This is why it’s crucial to work with experienced family lawyers who understand how to draft strong, fair and compliant agreements.
Postnuptial vs Prenuptial Agreements: What’s the Difference?
The main difference is timing:
- Prenuptial Agreement: Made before marriage
- Postnuptial Agreement: Made after marriage
Both are types of binding financial agreements under Australian law and follow the same rules and legal requirements.
Can a Postnuptial Agreement Be Updated?
Yes. If your financial situation or family circumstances change significantly, you can:
- Create a new binding financial agreement to replace the old one
- Vary or terminate the existing agreement by mutual consent, with proper legal advice and documentation
Common triggers for review include the birth of children, changes in income or significant asset purchases.
FAQs – Postnuptial Agreements in Australia
Do both partners need a lawyer?
Yes. Independent legal advice for both parties is mandatory for the agreement to be legally binding.
Can a postnuptial agreement protect my business?
Absolutely. It can outline how the business will be treated in case of separation, including ownership, valuation and income.
Can it include parenting arrangements?
No. Postnuptial agreements can only deal with financial matters. Parenting arrangements are handled separately through parenting plans or court orders.
Do we need to go to court to make the agreement valid?
No. BFAs do not need court approval, but they must meet all legal requirements to be enforceable.
Can de facto couples have similar agreements?
Yes. Binding financial agreements are available to both married and de facto couples under Australian law.
Final Thoughts
A postnuptial agreement isn’t about expecting the worst. It’s about protecting what matters most. By setting out clear terms for how assets, debts and finances are managed, couples can reduce uncertainty, avoid costly disputes and strengthen mutual trust.
Whether you’re newly married or years into your relationship, it’s never too late to put thoughtful legal safeguards in place. Speak with an experienced family lawyer to understand your options and ensure your agreement is valid under Australian law. Taking the time to create a postnuptial agreement today could save you stress, time and money in the future.
Protect Your Financial Future – Contact Johnsons Law Group
Whether you’re seeking to protect assets, clarify financial expectations or prepare for future uncertainties, a postnuptial agreement can give you control and peace of mind. At Johnsons Law Group, we help couples draft fair, effective and legally sound binding financial agreements tailored to their unique circumstances.
Call us on 02 9600 7277 or visit our Contact Us page to schedule a confidential consultation. Let’s protect what matters most—your future and your peace of mind.
