Binding Financial Agreements in Australia: Pre-Nups, Post-Nups and Financial Risk Management

The correct statutory pathway

Six sections do the work. The distinction that causes the most damage in practice is between section 90C and section 90D. An agreement between people who are separated but still married is a section 90C agreement — section 90C(2A) says expressly that such an agreement may be made before or after the marriage has broken down. Section 90D is available only after a divorce order has been made, whether or not it has taken effect.

Three further points matter when choosing the pathway. Each of sections 90B, 90C and 90D contains a requirement that the parties are not already spouse parties to another binding agreement about the same matters, with equivalent provisions in Part VIIIAB, so an undisclosed earlier agreement can undermine a new one. Part VIIIAB agreements are subject to a geographical requirement in section 90UA. And a superannuation agreement is not a separate instrument: under section 90XH it forms part of a financial agreement, takes effect only in accordance with Part VIIIB, and cannot be enforced under Part VIIIA.

Seven separate legal questions

Most confusion about these agreements comes from collapsing distinct questions into a single idea of “validity”. They are separate, they are decided by different provisions, and an answer to one does not answer another:

1. Is it a financial agreement of the relevant kind? Written, between the right people at the right stage, about permitted subject matter, and expressed to be made under the correct section.
2. Is it binding? Section 90G or section 90UJ.
3. Can a limited formal failure be addressed? Section 90G(1A) or section 90UJ(1A), and only by court order.
4. Is it valid, enforceable and effective as a contract? Section 90KA or section 90UN, applying principles of law and equity.
5. Should it be set aside? Section 90K or section 90UM, on a listed ground only.
6. Has it been terminated? Section 90J or section 90UL, and only in the two permitted ways.
7. Can it be enforced or implemented? Including any separation declaration, superannuation service requirements and third-party steps.

One consequence deserves emphasis because it is so often stated wrongly: failure to meet the formal requirements is not a ground for setting an agreement aside under section 90K or section 90UM. Formal failure goes to whether the agreement is binding at all, which is question 2, addressed if at all through question 3.

What an agreement can deal with

The permitted subject matter is broad. An agreement may deal with all or any of the property or financial resources of either or both spouse parties, and how those are to be dealt with or distributed in the event of the relationship breaking down. It may deal with maintenance, subject to the requirements described below. It may include matters incidental or ancillary to those matters, and other matters. It may address property acquired later, and identified future events, if it is drafted to do so. Superannuation may be dealt with where the Part VIIIB requirements are satisfied.

What an agreement cannot do is guarantee an outcome. It does not “quarantine” or “protect” an asset as a matter of law; it allocates rights between the parties, and its practical effect depends on whether it is binding, whether it is construed as the drafter intended, whether a set-aside ground is available and whether it can actually be implemented. Most of the litigation risk is drafting risk. The provisions that repay careful work are the asset schedules, the definitions, tracing of proceeds and substituted assets, treatment of growth and income, liabilities, interests held through companies and trusts, implementation mechanics, tax and duty responsibility, and review events such as marriage, children, a business sale or a move interstate or overseas.

Binding requirements and independent advice

Section 90G(1) provides that a financial agreement is binding if, and only if:

• the agreement is signed by all parties;
• before signing, each spouse party was provided with independent legal advice from a legal practitioner 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;
• either before or after signing, each spouse party was provided with a signed statement by the legal practitioner stating that the advice was provided — and the Act expressly says this applies whether or not the statement is annexed to the agreement;
• a copy of that statement is given to the other spouse party or to a legal practitioner for the other spouse party; and
• the agreement has not been terminated and has not been set aside by a court.

Section 90UJ(1) is in identical terms for Part VIIIAB agreements. Two points of precision are worth making, because practitioner summaries frequently overstate them. The statute does not require the signed statement to form part of, or be annexed to, the agreement; annexing it is a sensible drafting and evidentiary practice, not a statutory requirement. And the statement itself may be provided before or after signing — what must happen before signing is the substantive advice.

The quality of that advice is where agreements are attacked. The advice must be independent, provided to that party, and directed to the particular agreement and its advantages and disadvantages for that party at that time. Practically, that requires separate lawyers: a single practitioner cannot provide independent advice to both sides consistently with their conflict obligations. Parke Lawyers acts for one party only in an agreement of this kind. Two signed statements do not make an agreement safe. They evidence that advice was given; they do not answer whether the agreement is binding in other respects, nor whether a set-aside ground exists.

The limited curative jurisdiction

Sections 90G(1A) and 90UJ(1A) provide a narrow path where the formalities were not fully met. Under the current provisions, an agreement is binding where it was signed by all parties, one or more of the advice, signed-statement or copy requirements was not satisfied, the court is satisfied that it would be unjust and inequitable if the agreement were not binding — disregarding any changes in circumstances from the time the agreement was made — and the court makes an order declaring the agreement binding. That order is made on an enforcement application by a spouse party seeking to enforce the agreement, and section 90KA applies to that application.

Three limits follow. The provision cannot cure an unsigned agreement. It addresses only the identified advice and statement paragraphs, not every possible defect, and it does not reach the threshold question of whether the document is a financial agreement of the relevant kind at all. And it operates only through a court order, which means contested litigation about an agreement whose whole purpose was to avoid it. Authority on the earlier form of the provision, including Hoult & Hoult [2013] FamCAFC 109, indicates that the inquiry is directed to whether the required advice was provided rather than to whether it was good advice. That case law must now be read against the current structure, which requires the court to make a declaration. Relying on the curative provision is a litigation risk to be avoided, not a drafting strategy.

Maintenance

Maintenance provisions have their own rules. Under section 90E, and section 90UH for de facto agreements, a provision relating to the maintenance of a spouse party or a child is void unless it specifies the party or child for whose maintenance provision is made and the amount provided for, or the value of the portion of the relevant property attributable to that maintenance. Generic mutual releases without those specifics are exposed.

Separately, section 90F for married couples and section 90UI for de facto couples limit the exclusion of maintenance: no provision excludes or limits the court’s power to order maintenance if the court is satisfied that, when the agreement came into effect, the circumstances of the party were such that, taking into account the terms and effect of the agreement, the party was unable to support themselves without an income-tested pension, allowance or benefit. A purported complete release is therefore not invariably effective. Spousal and de facto maintenance is a different subject from child support and child maintenance; eligibility, quantum and procedure are covered in our spousal maintenance guide.

Parenting and child support

A financial agreement cannot determine parenting arrangements or oust the court’s parenting jurisdiction, and calling a document a financial agreement does not displace the Child Support (Assessment) Act 1989 (Cth). It is not accurate, though, to say that child support can never be dealt with in a binding way. Limited and binding child support agreements exist under that Act, with their own requirements: a binding child support agreement must be in writing and signed, each party must have been given independent legal advice before signing as certified in an annexure to the agreement, and the agreement takes effect on acceptance by the Registrar.

The practical point is that the same physical document may contain both a financial agreement and a separately compliant child support agreement — the Act contemplates child maintenance provisions sitting in the same document for child support purposes — but each regime must independently be satisfied. Getting one right does not rescue the other. The requirements, review and termination of child support agreements are covered in our child support assessments and agreements guide.

Disclosure and valuation

Disclosure works differently here from litigation. Section 71B imposes a duty of full and frank disclosure on parties to proceedings relating to financial or property matters of a marriage, and section 90RI imposes the corresponding duty in proceedings relating to financial or property matters of a de facto relationship; both also reach separated parties who are preparing for such a proceeding, and the court rules impose pre-action and procedural obligations. A genuinely private negotiation for an agreement that is unconnected with existing or contemplated proceedings is not necessarily governed by those statutory duties, and whether particular negotiations or preparatory work fall within section 71B or section 90RI depends on the circumstances. In every case the obligations that most directly bind the parties in agreement-making are contractual: the disclosure schedules, warranties and representations in the agreement itself, and the consequences the agreement attaches to them. Material non-disclosure may also engage the statutory fraud ground.

That is a reason to be more careful, not less. Fraud, including non-disclosure of a material matter, is an express set-aside ground under section 90K and section 90UM — but it must be proved, and the matter must be material. An omission is not automatically fraud and does not automatically set an agreement aside. A practical disclosure schedule should cover real property, bank accounts and investments, income, liabilities and guarantees, superannuation (including defined benefits and self-managed funds), interests in companies, partnerships and trusts, cryptocurrency, overseas assets and income, tax position and lodgements, and contingent or expected interests. Where value is contested, a properly instructed valuation is worth far more than an agreed guess.

Setting aside

A court may set a financial agreement or a termination agreement aside only on a ground in section 90K, or section 90UM for de facto agreements. The grounds include:

• the agreement was obtained by fraud, including non-disclosure of a material matter;
• a party entered into it to defraud or defeat a creditor, or with reckless disregard of a creditor’s interests — and “creditor” extends to a person the party could reasonably have foreseen as likely to become one;
• a party entered into it to defraud or defeat the interests of another person who is in a de facto relationship with a spouse party;
• the agreement is void, voidable or unenforceable;
• circumstances arising since the agreement was made make it impracticable for the agreement, or part of it, to be carried out;
• a material change in circumstances relating to the care, welfare and development of a child of the marriage or relationship has occurred and, as a result, the child or a party with caring responsibility will suffer hardship if the agreement is not set aside;
• a party engaged in conduct that was, in all the circumstances, unconscionable in the making of the agreement; and
• the superannuation grounds: an unresolved payment flag under Part VIIIB with no reasonable likelihood of being lifted, or the agreement covering an unsplittable interest.

One specialist and uncommon category sits outside that list. Proceeds of crime and forfeiture are dealt with elsewhere: sections 90M to 90Q, and sections 90VA to 90VD for de facto financial causes, require a proceeds of crime order or forfeiture application to be disclosed and notified, require the court to stay affected property or maintenance proceedings, and allow the proceeds of crime authority to intervene. A proceeds of crime order is also an express ground for varying or setting aside a property order under section 79A(1)(e) or section 90SN(1)(e). It is not, however, a listed ground for setting aside a financial agreement under section 90K or section 90UM; where such an order touches property covered by an agreement, specialist advice is needed.

Three distinctions matter. Common-law and equitable doctrines — duress, undue influence, mistake, misrepresentation — operate through the void, voidable or unenforceable ground. Statutory unconscionable conduct in the making of the agreement is its own express ground. And unfairness, regret, hindsight or a bad bargain is none of these. The court is confined to the statutory grounds; there is no general fairness review of a financial agreement, and the set-aside jurisdiction for court orders under section 79A or section 90SN is a different regime altogether, covered in our guide to reopening a property settlement.

Impracticability and changed circumstances

Impracticability is not disappointment. Inconvenience, increased expense, an unattractive result or the fact that circumstances have changed materially does not establish that the agreement cannot be carried out. The child-related ground has its own conditions: a qualifying material change and resulting hardship. Review clauses, defined future events and sensible contingency drafting are prudent because they reduce the chance of a stalemate, not because they change the statutory tests.

Thorne v Kennedy

Thorne v Kennedy [2017] HCA 49 is the leading authority on vitiating conduct in the making of these agreements. The wife had moved to Australia to marry a substantially wealthier man; the pre-nuptial agreement was produced shortly before the wedding, she was told the wedding would not proceed unless she signed, the independent solicitor she consulted advised her not to sign, and a substantially identical agreement was signed after the marriage. The High Court allowed the appeal and the agreements were set aside.

The reasoning repays attention because it is routinely oversimplified. Duress, undue influence and unconscionable conduct are distinct doctrines with distinct elements. The Court identified a non-exhaustive list of matters relevant to whether a party was able to make a free choice, including the relative financial positions of the parties, the emotional circumstances in which the agreement was made, whether there was any real opportunity to negotiate the terms, whether independent advice was obtained and whether that advice was heeded, and the time available before the wedding.

What the case does not decide is that a last-minute agreement, an agreement made during pregnancy, an agreement heavily favouring one party, or an agreement signed under emotional pressure is invalid. Each of those is evidence, sometimes powerful evidence, about whether a party had a practical ability to choose. The question remains whether the elements of a recognised doctrine, or a statutory ground, are established on the facts. Proximity to a wedding is a relevant circumstance, not a rule.

Termination

This is the most commonly mishandled step. Under section 90J, and section 90UL for de facto agreements, parties may terminate a financial agreement only in one of two ways. The first is by including an express provision to that effect in another financial agreement — a later agreement made under any of the applicable statutory pathways, not necessarily the same section as the earlier one. Section 90J(1)(a) operates by reference to subsections 90B(4), 90C(4) and 90D(4), so a section 90B pre-nuptial agreement can be expressly terminated by a later section 90C agreement made during the marriage, provided the later instrument itself satisfies the requirements for a financial agreement and all of the parties to the earlier agreement are parties to the later one. Section 90UL(1)(a) works the same way by reference to subsections 90UB(4), 90UC(4) and 90UD(4). The second way is a written termination agreement, which must itself satisfy the same signature, independent advice, signed-statement and copy requirements, with the same limited curative mechanism. Neither route is casual: a document that is not itself a qualifying financial agreement or a compliant termination agreement does not terminate anything.

It follows that reconciliation, separation, the passage of time, an informal understanding, or conduct inconsistent with the agreement does not terminate it. Nor does a later inconsistent agreement simply supersede an earlier one: a replacement should expressly identify and terminate the earlier agreement rather than leave a court to reconcile two instruments. Originals, executed termination agreements, the practitioners’ signed statements and evidence of when copies were exchanged should be preserved indefinitely, and each party should know where their originals are kept.

Separation declarations

Formation and binding force are one thing; provisions taking effect is another. Under section 90DA, to the extent a binding financial agreement deals with how property or financial resources are to be dealt with in the event of the breakdown of the marriage, those provisions are of no force or effect until a separation declaration is made. Section 90UF is the de facto equivalent.

A separation declaration is a written declaration, which may be included in the agreement itself, signed by at least one spouse party, stating that the parties have separated and are living separately and apart at the declaration time and that, in the opinion of the party making it, there is no reasonable likelihood of cohabitation being resumed. There is no separate twelve-month requirement — that threshold belongs to divorce, not to this declaration. Section 90DA(1) ceases to apply on divorce or on the death of a party. Superannuation splitting has its own separation declaration requirement under Part VIIIB. Implementation should be checked against these requirements before any asset is transferred.

Validity, construction and enforcement

Under section 90KA, and section 90UN for de facto agreements, whether an agreement is valid, enforceable or effective is determined according to the principles of law and equity applicable to contracts. The court has the powers and remedies the High Court would have in contract proceedings in its original jurisdiction, may order interest on an amount payable under the agreement, and may enforce the agreement, or part of it, as if it were an order of the court.

Two practical consequences follow. First, enforcing an agreement is a different exercise from asking for a property adjustment under section 79 or section 90SM: the question is what the agreement requires and whether the court will enforce it, not what division would be just and equitable. Second, contractual remedies and equitable relief come with contractual and equitable limitations — construction of ambiguous or inconsistent terms, discretionary considerations, and the rights of third parties. Incomplete schedules, inconsistent definitions, uncertain trigger events and defective implementation provisions are the ordinary source of litigation, and they are all avoidable at the drafting stage.

Death and estate planning

Section 90H provides that a binding financial agreement continues to operate despite the death of a party and operates in favour of, and is binding on, the legal personal representative of that party. Section 90UK is in the same terms for Part VIIIAB agreements. What that means in a given case depends on the text of the agreement — whether its obligations were expressed to survive death, what happens to jointly held assets, and whether any separation declaration requirement had been met.

Because of that, an agreement has to be read together with the rest of a person’s planning: the will and any testamentary trust, jointly owned property and survivorship, superannuation death-benefit nominations, life insurance beneficiary designations and enduring powers of attorney. A financial agreement does not control superannuation death benefits and is not a substitute for estate-planning documents. Inconsistency between an agreement and a will is a common and expensive outcome; see our guides to superannuation and your will, binding death benefit nominations and testamentary trusts.

Creditors, bankruptcy and third parties

An agreement binds the parties to it. It does not, by itself, bind creditors, a trustee in bankruptcy, lenders, other shareholders, trustees of a family trust or revenue authorities. Sections 90K and 90UM contain express creditor-related set-aside grounds, extending to creditors the party could reasonably have foreseen as likely, and sections 71A and 90SA preserve certain bankruptcy-trustee proceedings despite a binding agreement. The Bankruptcy Act 1966 (Cth) contains its own clawback provisions for transfers to defeat creditors and undervalued transactions.

Implementation also requires separate steps and often third-party consent: lender approval or refinance, transfer and registration, company and trust resolutions, superannuation service on the trustee, and duty and tax treatment. An agreement is not a device for defeating creditors, and it is not a substitute for lawful structuring. Where insolvency is a real possibility, that issue should be addressed directly — see our guide to property settlement where a former spouse is bankrupt and, for trusts and businesses, our family trusts and business interests guides.

De facto couples and Western Australia

Part VIIIAB agreements can be made only where the spouse parties are ordinarily resident in a participating jurisdiction when the agreement is made, under section 90UA. That geographical requirement is separate from the gateways in section 90SB that govern whether a court may make a de facto property order at all — minimum duration, a child, or substantial contributions and serious injustice — which are covered in our de facto property claim guide. An agreement is about the parties’ own allocation of rights; the gateways are about jurisdiction.

Western Australia is different. De facto financial matters in Western Australia generally operate under Western Australian legislation rather than the federal Part VIIIAB regime, and Western Australian advice should be obtained before an agreement is prepared or relied on there. Married couples in Western Australia remain within the federal Part VIIIA regime. Part VIIIAB also contains a mechanism by which certain agreements made under a non-referring State law can become Part VIIIAB financial agreements, which is a specialist question.

Agreements compared with consent orders

The two instruments are not interchangeable, and the choice should be made on the facts rather than on habit.

• Nature. An agreement is a private contract given effect by the Act. Consent orders are orders of the court.
• Timing. An agreement can be made before or during a relationship. Consent orders require an application, and property orders are usually sought once a settlement is reached.
• Advice and scrutiny. An agreement requires independent advice to each party but no court approval. Consent orders require no independent advice but the court must be satisfied that property orders are just and equitable.
• Scope. An agreement can address future property and identified future events, and can include maintenance subject to sections 90E to 90F or 90UH to 90UI.
• Challenge. Agreements are attacked under sections 90K or 90UM and contractually under sections 90KA or 90UN; consent orders under section 79A or section 90SN, or on appeal.
• Implementation. Both require the same practical steps — transfers, refinance, superannuation service, third-party consents. Neither guarantees a particular tax or duty outcome; relief depends on the transaction, the jurisdiction and the evidence.

Procedure, drafting and variation of consent orders are covered in our consent orders guide, and the tax and duty consequences of implementing either instrument in our CGT and duty guide.

Privacy

An agreement is not ordinarily filed with a court for approval, so it avoids the public step of an application. That is not confidentiality. It may have to be disclosed to advisers, lenders, trustees, revenue authorities or regulators, it may be produced in later proceedings about its enforceability, and its contents may become evidence. No promise of absolute privacy can responsibly be made.

The practical process

1. Identify the correct statutory pathway for the parties’ actual circumstances.
2. Define each party’s objectives, non-negotiables and the events the agreement must accommodate.
3. Exchange disclosure and obtain valuations where value is contested.
4. Where useful, record the commercial shape in a term sheet, clearly marked as not binding.
5. Allow adequate time. Compressed timetables are the single most common source of later challenge.
6. Ensure each party has separate representation and receives substantive advice on the actual draft.
7. Negotiate and revise, updating schedules as circumstances change during negotiation.
8. Execute correctly, with every party signing and dates recorded.
9. Obtain and exchange the practitioners’ signed statements, and preserve originals and proof of exchange.
10. Complete any separation declaration before provisions dependent on it are acted on.
11. Implement: transfers, registration, refinance, superannuation service on the trustee, company and trust steps.
12. Update wills, nominations and powers of attorney so the estate plan matches the agreement.
13. Diarise review events — marriage, children, a business sale, relocation, a substantial change in assets.

Worked examples

These simplified hypotheticals illustrate the competing considerations. They are not predictions, and no percentages are implied.

Established wealth before marriage

A engages a firm to prepare a section 90B agreement identifying pre-marriage investments and a share portfolio. The considerations are whether the schedules identify the assets well enough to survive a decade of reinvestment, how growth, income and substituted assets are treated, whether B’s advice occurs early enough to be real, and whether the maintenance provisions meet the requirements of sections 90E and 90F. Whether the agreement is ultimately enforced depends on the facts then, not on the label now.

An inheritance received during the marriage

C inherits a property and the couple decide to record how it is to be dealt with. The correct pathway is section 90C. Questions include whether the inheritance can still be identified if it is applied to the family home, whether the agreement deals with the rest of the pool or only that asset, and what happens if the property is sold and reinvested. Treatment of inheritances absent an agreement is covered in our inheritance guide.

Separated but not divorced

D and E separate and reach agreement without going to court. A document expressed to be made under section 90D would be made under a section that is not yet available, because no divorce order exists. The correct pathway is section 90C. The parties also need a separation declaration before the breakdown provisions take effect, and they should consider whether consent orders would suit a present settlement better.

A process problem

F presents G with an agreement days before the wedding, with guests booked and family travelling. G’s solicitor advises against signing. G signs anyway. Nothing about that sequence is automatically fatal, but the combination of urgency, the consequences of refusing, unequal positions, no real opportunity to negotiate and advice not acted on is exactly the territory Thorne v Kennedy addressed. The remedy is process: time, genuine negotiation, and a record of both.

Termination and inconsistent estate planning

H and J made an agreement years ago, later reconciled, and have since made a new agreement that says something different. The earlier agreement was never terminated under section 90J and was not expressly terminated by the later one. H’s will also leaves an asset the agreement promises to J. The result is litigation about which instrument governs — avoidable by an express termination clause and by aligning the will, nominations and agreement at the same time.

Related reading

• Consent orders in family law — the court-based alternative.
• Property settlement after separation and the so-called four-step process — the framework an agreement displaces.
• De facto property claims and time limits for property settlement.
• Spousal maintenance and child support assessments and agreements.
• Superannuation splitting and tax and CGT on settlement.
• Reopening or setting aside a property settlement.

Frequently asked questions

Sources and further reading

• Family Law Act 1975 (Cth) — current compilation, including Part VIIIA (ss 90B to 90KA), Part VIIIAB (ss 90SA, 90UA to 90UN), ss 71A and 71B, and Part VIIIB (including ss 90XH and 90XP).
• Family Law Amendment Act 2024 (Cth) — amendments to the property and disclosure framework, which commenced on 10 June 2025.
• Child Support (Assessment) Act 1989 (Cth) — limited and binding child support agreements, including s 80C.
• Bankruptcy Act 1966 (Cth) — clawback of transfers to defeat creditors and undervalued transactions.
• Thorne v Kennedy [2017] HCA 49 — High Court judgment on duress, undue influence and unconscionable conduct in financial agreements.
• Federal Circuit and Family Court of Australia — property and finance: if you agree and the financial proceedings practice direction.
• Federal Circuit and Family Court of Australia (Family Law) Rules 2021 — including Chapter 6 (disclosure) and the pre-action procedures.
• Attorney-General’s Department — the family law system.

How Parke Lawyers can help

Financial agreements sit where family law, commercial structuring, tax and estate planning meet. Parke Lawyers prepares and reviews agreements for people entering relationships, for couples restructuring during a relationship, and for parties documenting a settlement after separation, through our Family Law team, with support from our Wills & Estate Planning practice where an agreement has to sit alongside a will, superannuation nominations or a trust. We act for one party only in any financial agreement, and we will tell you plainly when consent orders or another course would serve you better.

We also advise on Ringwood and eastern-suburbs matters from our Ringwood family-law practice. Engaging us early matters: the quality of the process is usually what determines whether an agreement holds.