When couples plan a wedding, discussions usually revolve around venues, catering and guest lists. But increasingly, many people have also been asking: 'Should we get a prenup?'

A prenup, also called a pre-marriage contract or pre-marriage agreement, is a legal document signed before marriage that sets out how finances, assets, and debts will be managed if the relationship ends. While the idea may feel unromantic, prenups are designed to provide clarity, reduce conflict and protect both partners in the long run.

So, what is a prenup, how does it work and is it right for you? Let’s break it down.

What is a prenup?

A prenup (short for prenuptial agreement) is a legally binding contract entered into by two people before marriage. In Australia, prenups are formally known as Binding Financial Agreements (BFAs) under the Family Law Act 1975 (Cth).

Prenups set out how assets, liabilities, superannuation, and even spousal maintenance will be divided if the relationship ends through divorce or separation.

Key point: A prenup is not about predicting the end of a marriage, it’s about providing certainty and reducing the risk of costly disputes if the relationship does break down.

Prenup vs pre-marriage contract

The terms prenup, pre-marriage contract, and pre-marriage contracts all mean the same thing. They describe a written financial agreement made before a wedding, they all fall under the legal category of Binding Financial Agreements.

• 'Prenup' – informal, widely used term.
• 'Pre-marriage contract' – more formal wording, often used in legal discussions.
• 'Pre-marriage contracts' – the plural, often used when describing the broader concept of these agreements.

Whether you call it a prenup or a pre-marriage contract, the function is the same: to set financial boundaries and protect assets.

Why do couples consider prenups?

There are many reasons people decide to enter into a prenup:

1. Protecting assets acquired before marriage

If one partner owns a property, has extensive savings, or large investments before that marriage; a prenup ensures those assets remain theirs in the event of divorce.

2. Safeguarding inheritances or family businesses

Prenups are common where family businesses or generational wealth need protection from potential future claims.

Example: A wife-to-be is due to inherit farmland from her parents. A prenup ensures the farm remains in the family even if the marriage ends.

3. Second marriages or blended families

If one or both partners have children from previous relationships, a prenup can protect assets intended for those children.

4. Reducing financial conflict

Prenups provide clarity around how property and debts will be handled, minimising the risk of drawn-out disputes in court.

5. Protecting against debt

A prenup can specify that one partner is not responsible for the other’s personal or business debts.

How does a prenup work?

Legal requirements for a valid prenup

For a prenup (BFA) to be legally binding in Australia, it must meet strict conditions under the Family Law Act 1975:

• Independent legal advice: Each party must obtain independent legal advice from a qualified family lawyer.
• Written and signed: The agreement must be in writing and signed by both parties.
• Lawyer’s certificates: Each lawyer must sign a certificate confirming they gave advice about the effect and risks of the agreement.
• Voluntary consent: The agreement must be entered into freely, without coercion or pressure.
• Full financial disclosure: Both parties must disclose all assets, income, debts, and liabilities.

What prenups can cover

• Property and asset division.
• Spousal maintenance (ongoing financial support).
• Superannuation splitting.
• Responsibility for debts.
• Business interests.

What prenups cannot cover

• Parenting arrangements for children (these must be determined separately in the best interests of the child). For this we recommend finding a family lawyer to specify custody arrangements. 

Benefits of a prenup

• Clarity and certainty: Couples know in advance what will happen if they separate.
• Protects family wealth: Prevents disputes over inheritances or family businesses.
• Reduces legal costs later: Avoids lengthy court proceedings if the relationship breaks down.
• Tailored to your needs: Every prenup is unique to the couple’s circumstances.

Risks and criticisms of prenups

While prenups offer many advantages, they are not without criticism:

• May strain relationships: Discussing finances before marriage can feel uncomfortable.
• Potential to be overturned: Courts can set aside prenups if they were signed under duress, are grossly unfair, or circumstances have changed significantly.
• Costs upfront: Drafting and reviewing a valid prenup involves legal fees for both partners.

Example: If a prenup excludes one partner from any financial support, but they later become seriously ill and unable to work, the court may set aside the agreement as unjust.

How much does a prenup cost?

The cost of a prenuptial agreement depends on the complexity of the couple's finances. Fees generally cover charges from specialist family lawyers for drafting the agreement and providing independent legal advice to both parties, plus any potential filing costs. While this involves an initial expense, a valid prenup can protect assets and prevent far more expensive legal battles later, making it a valuable long-term investment.

Is having a prenup a bad sign? 

Not at all. It can actually be a sign of maturity and transparency in a relationship. 

Here’s how to think about it:

💬 What a prenup really means 

A prenup is simply a legal agreement that sets out how finances, property, and sometimes debts will be handled if the marriage ends. It doesn’t assume that it will end, it just gives both people clarity and peace of mind, similar to having insurance.

❤️ Emotional Perspective

Some people see prenups as “unromantic,” but many couples now view them as a way to strengthen trust and communication. It forces both partners to have honest conversations about money, expectations, and values before marriage, topics that are often hard to bring up otherwise.

⚖️ Practical Benefits

• As we’ve alluded to above, having a prenup protects individual or family assets (especially if one partner owns a business or property). 
• Helps avoid conflict later if a divorce happens.
• Can protect one partner from the other’s debts.
• Clarifies financial responsibilities during the marriage.

🚩 When you shouldn’t get a prenup

• One partner springs it on the other without warning or discussion.
• It’s written in a way that’s unfair or one-sided.
• It’s used as a tool of control or mistrust, rather than a mutual agreement.

If both partners approach it collaboratively (ideally with independent legal advice) it’s more a sign of mutual respect than of trouble.

How family lawyers help with prenups

Family lawyers play a critical role in making prenups legally binding and enforceable. They can:

• Provide advice on your rights and obligations.
• Draft agreements tailored to your financial situation.
• Ensure full financial disclosure is made.
• Certify that both parties received independent legal advice.
• Protect you from loopholes that could make the agreement invalid.

Conclusion: Should you consider a prenup?

If you’re considering a pre-marriage contract, it’s essential to get advice from an experienced family lawyer. With Bark, you can connect with trusted lawyers who will guide you through the process; ensuring your prenup is fair, enforceable, and designed to safeguard your future.