Binding Financial Agreement (Pre-nup) Template (Australia)
A Binding Financial Agreement ("BFA"), commonly called a "pre-nup", is a contract between two parties to a marriage or de facto relationship made under the Family Law Act 1975 (Cth). Our free Australian template handles all six timing variants — pre-marriage (s. 90B), during marriage (s. 90C), after divorce (s. 90D), pre-de facto (s. 90UB), during de facto (s. 90UC), and after de facto (s. 90UD) — and adapts the document to satisfy the strict binding requirements of s. 90G (marriage) or s. 90UJ (de facto), including independent legal advice and Solicitor's Certificates.
Date of birth: 14 March 1985
Phone: +61 412 998 776
Date of birth: 8 September 1987
Phone: +61 412 887 665
1.1 Relationship: The Parties intend to marry on or about 15 October 2026.
1.2 Purpose: The Parties enter into this Agreement to record their financial and property arrangements during the marriage and on any future breakdown of the marriage. The Parties intend that this Agreement will determine all financial matters arising between them under the FLA, subject only to the express provisions of this Agreement and the operation of section 90K of the FLA.
1.3 Voluntariness: Each Party enters into this Agreement freely and voluntarily, without any duress, undue influence, or unconscionable conduct. Each Party has had a reasonable opportunity to consider the terms of the Agreement and to seek independent legal advice. Each Party acknowledges Thorne v Kennedy (2017) 263 CLR 85 (signed too close to the wedding under coercive circumstances) and confirms that this Agreement is not made in any analogous circumstances.
2.1 Party A — Assets:
- Residential property — 15 Banksia Avenue, Wahroonga NSW (unencumbered): 2,400,000.00 AUD
- CommSec investment portfolio (managed funds and listed equities): 850,000.00 AUD
- Patterson Family Holdings Pty Ltd — 100% shareholding (consulting business): 1,200,000.00 AUD
- Vehicles — 2024 Tesla Model Y + 2018 Mazda CX-5: 85,000.00 AUD
2.2 Party A — Liabilities:
- Business credit line (Patterson Family Holdings) — secured against business assets: 150,000.00 AUD
2.3 Party A — Income and Superannuation: Annual income (gross): 320,000.00 AUD. Superannuation balance: 485,000.00 AUD.
2.4 Party B — Assets:
- Apartment — 22 Marine Parade, Manly NSW (mortgaged): 1,450,000.00 AUD
- Westpac shares and managed funds: 320,000.00 AUD
- Vehicle — 2023 BMW X3: 65,000.00 AUD
2.5 Party B — Liabilities:
- Mortgage on apartment with CBA: 720,000.00 AUD
2.6 Party B — Income and Superannuation: Annual income (gross): 195,000.00 AUD. Superannuation balance: 215,000.00 AUD.
2.7 Full and Frank Disclosure: Each Party warrants that the schedules above are, to the best of their knowledge, a true and complete statement of their assets, liabilities, income, and superannuation at the date of this Agreement. Non-disclosure of material assets may be a ground for setting aside this Agreement under section 90K of the FLA.
The Parties adopt a separate property approach. On any future breakdown of the marriage, each Party will retain absolutely all property registered in or beneficially owned by that Party as their separate property, including all property acquired before, during, and after the marriage, free of any claim by the other Party under Part VIII or Part VIIIAB of the FLA. No property pool will be created and no equalisation payment is required.
3.2 Joint Property Treatment: Any property acquired jointly during the marriage in the joint legal names of both Parties will be held as joint tenants (or as tenants in common as the parties agree at the time of acquisition) and will be divided equally on any breakdown of the marriage. The Parties intend that pre-marital property will remain entirely separate, while jointly-acquired marital property will be split equally.
Each Party expressly excludes any entitlement to spousal maintenance (in the case of marriage) or to maintenance under Part VIIIAB Division 5 of the FLA (in the case of a de facto relationship) on any future breakdown of the marriage.
Each Party acknowledges that they have been advised by their solicitor of the maintenance regime under Part VIII (s. 72-75) of the FLA for marriages, and Part VIIIAB Division 5 (ss. 90SE-90SH) for de facto relationships, and freely and voluntarily exclude these entitlements.
The Parties acknowledge that s. 90K(1)(g) of the FLA empowers the Court to set aside an Agreement that excludes maintenance where, after the Agreement is made, a material change in circumstances of one Party causes them to be unable to support themselves without an income-tested pension or benefit. The Parties consider that no such change is reasonably foreseeable.
5.1 Inheritance and Gifts Treatment: Each Party's inheritance and gifts received during the marriage from third parties will be treated as the separate property of the receiving Party and will not form part of any property pool subject to division.
5.2 Gifts Detail: Gifts between the Parties of a value of less than AUD 25,000 each will be treated as the receiving Party's separate property. Gifts of higher value or transfers of real property or business interests require fresh ILA and a separate written acknowledgement.
The Parties agree the following treatment for property acquired jointly during the marriage:
Where the Parties acquire a property jointly during the marriage (such as a marital home), the proportion of each Party's contribution to the purchase price (including by way of mortgage covenants) will be recorded in a separate joint asset register at the time of acquisition. On any breakdown, jointly-acquired property is divided proportionally to recorded contributions. The Parties intend to acquire a marital home within 2 years of the wedding date.
8.1 Party A's Independent Legal Advice: Party A obtained independent legal advice from Robert J. Mitchell of Mitchell and Carter Solicitors, Level 8, 50 Bridge Street, Sydney NSW 2000 on 20 September 2026. The solicitor advised Party A about: (a) the effect of this Agreement on the rights of Party A; and (b) the advantages and disadvantages, at the time the advice was provided, of making this Agreement, as required by section 90G(1)(b) of the FLA.
8.2 Party B's Independent Legal Advice: Party B obtained independent legal advice from Catherine L. Wilson of Wilson Family Law, Suite 4, 100 William Street, East Sydney NSW 2010 on 22 September 2026. The solicitor advised Party B about: (a) the effect of this Agreement on the rights of Party B; and (b) the advantages and disadvantages, at the time the advice was provided, of making this Agreement, as required by section 90G(1)(b) of the FLA.
8.3 Statement of Independent Legal Advice (Solicitor's Certificate): Each solicitor will sign a separate "Statement of Independent Legal Advice" (the Solicitor's Certificate) in the form required by section 90G(1)(c) of the FLA. The certificates will be exchanged before this Agreement is signed by the Parties. Each Party will retain the original certificate from the other Party's solicitor.
8.4 Compliance with Hoult v Hoult: The Parties acknowledge the principles in Hoult v Hoult [2013] FamCAFC 109 that strict compliance with the formalities of section 90G is required and that imperfect compliance may invalidate the Agreement (subject to section 90G(1A) of the FLA, which permits the Court to declare an agreement binding despite a technical breach where it would be unjust and inequitable not to do so).
9.1 Mutual Disclosure Confirmation: Each Party warrants that they have made full and frank disclosure of all material assets, liabilities, income sources, superannuation, contingent interests, business interests, and financial expectations as at the date of this Agreement. Each Party acknowledges that a failure to disclose a material matter may be a ground for the Court to set aside this Agreement under s. 90K(1)(a) of the FLA (fraud, including non-disclosure of a material matter).
9.2 Variation Mechanism: This Agreement may be varied at any time by written agreement signed by both Parties. Any variation will require fresh independent legal advice for each Party from a different solicitor than the one named above (or the same solicitor with renewed advice), and new solicitor certificates. The Parties undertake to review this Agreement every 5 years from the wedding date and at any time of a material change in circumstances (such as the birth of children, significant property acquisition, or a substantial change in income). Any variation must be in writing, signed by both Parties, and accompanied by fresh independent legal advice (and new solicitor certificates) for each Party in accordance with section 90G of the FLA.
The Parties acknowledge that the Federal Circuit and Family Court of Australia may set aside this Agreement under section 90K of the FLA in limited circumstances, including: (a) fraud (including non-disclosure of a material matter); (b) a party entered into the Agreement for the purpose of defrauding a creditor; (c) the Agreement is void, voidable, or unenforceable; (d) circumstances have arisen that make it impracticable for the Agreement (or part of it) to be carried out; (e) since the Agreement was made, a material change has occurred in the care, welfare, and development of a child that would result in serious hardship; (f) unconscionable conduct of a party; (g) a party would be unable to support themselves without an income-tested pension and the Agreement excludes maintenance.
The Parties acknowledge the High Court decision in Thorne v Kennedy (2017) 263 CLR 85, which established the modern law of undue influence and unconscionable conduct in the context of pre-marital agreements, and confirm that no such factors apply to the making of this Agreement.
11.1 Governing Law: This Agreement is made under and governed by the Family Law Act 1975 (Cth) and the laws of New South Wales. The Federal Circuit and Family Court of Australia has jurisdiction in respect of any matter arising under this Agreement.
11.2 Ousting of Court Jurisdiction: The Parties intend that, once this Agreement becomes binding, it ousts the jurisdiction of the Federal Circuit and Family Court of Australia under section 71A of the FLA to make orders adjusting the property interests of the Parties under section 79 or section 90SM of the FLA in respect of the matters dealt with in this Agreement.
11.3 Entire Agreement: This Agreement constitutes the entire agreement between the Parties in respect of the financial matters to which it applies and supersedes all prior negotiations, representations, and informal arrangements.
11.4 Counterparts: This Agreement may be executed in counterparts. Electronic signature is permitted under the Electronic Transactions Act 1999 (Cth) and equivalent State legislation, provided that the Solicitor's Certificates are exchanged in original form.
11.5 Severance: If any clause of this Agreement is held to be invalid or unenforceable, the remaining clauses continue in force to the maximum extent permitted by law.
What Is a Binding Financial Agreement?
A Binding Financial Agreement is a contract between two parties to a marriage or de facto relationship that determines how their property, income, and financial affairs will be dealt with during the relationship and on any future breakdown of the relationship. Once binding, the Agreement <strong>ousts the jurisdiction of the Federal Circuit and Family Court of Australia</strong> under section 71A of the FLA to make property orders under section 79 or section 90SM. In effect, the Parties "contract out" of the Court's discretionary property regime and substitute their own agreed allocation. BFAs are governed by Part VIIIA of the FLA for married couples and Part VIIIAB for de facto couples.
BFAs can be entered into at three points: <strong>before</strong> the relationship commences (s. 90B for pre-marriage, s. 90UB for pre-de facto — the classic "pre-nup"); <strong>during</strong> the relationship (s. 90C / 90UC); or <strong>after</strong> separation (s. 90D / 90UD — a financial separation agreement that finalises property without Court orders). The most common use is the pre-nuptial agreement, where one or both parties bring significant pre-existing assets to the relationship (a home, business, family inheritance, share portfolio) and wish to ring-fence those assets from the discretionary outcome under s. 79 FLA.
For a BFA to be <strong>binding</strong>, the strict requirements of section 90G (marriage) or section 90UJ (de facto) must be satisfied: <strong>(a)</strong> the Agreement must be signed by both parties; <strong>(b)</strong> before signing, <em>each</em> party must obtain independent legal advice from a legal practitioner about the effect of the Agreement and the advantages and disadvantages, at the time the advice was provided, of making the Agreement; <strong>(c)</strong> each solicitor must sign a written "Statement of Independent Legal Advice" (the Solicitor's Certificate); <strong>(d)</strong> the original certificates must be exchanged before the Agreement is signed by the parties. The High Court decision in <em>Thorne v Kennedy</em> (2017) 263 CLR 85 confirmed that the entire BFA can be invalidated by undue influence or unconscionable conduct (such as signing under coercive circumstances close to the wedding).
What's Covered in This Template
Our Australian BFA template handles all six FLA timing variants and binds for both marriage and de facto relationships.
Six FLA Timing Variants
Pre-marriage (s. 90B), during marriage (s. 90C), after divorce (s. 90D), pre-de facto (s. 90UB), during de facto (s. 90UC), after de facto (s. 90UD) — template adapts the statute references automatically.
Marriage and De Facto Coverage
Part VIIIA (marriage) and Part VIIIAB (de facto) both supported; binding requirements ss. 90G and 90UJ correctly referenced.
Full Financial Disclosure
Repeatable-row asset and liability schedules for both Parties, plus income and superannuation — supports the "full and frank disclosure" requirement and reduces s. 90K(1)(a) setting-aside risk.
Four Distribution Approaches
Separate property (most common), equal 50/50 split, proportional to contributions (per s. 79(4) FLA principles), or custom bespoke arrangement.
Mandatory Independent Legal Advice
Captures each Party's solicitor name, firm, and advice date — the foundation of the Solicitor's Certificate required by s. 90G(1)(c) / 90UJ(1)(c).
Thorne v Kennedy Acknowledgement
Express acknowledgement of the High Court's leading case on undue influence and unconscionable conduct in pre-nuptial agreements.
Expert: Spousal Maintenance
Express exclusion of maintenance entitlement (Pt VIII s. 72-75 or Pt VIIIAB Div 5) or alternative maintenance provision — with s. 90K(1)(g) safeguard note.
Expert: Inheritance and Gifts
Three treatment options: always separate, pool entirely, or graduated 5-year separate then progressive merging — reflects emerging Australian practice.
Expert: Joint Property Acquired During
Express clause for property acquired jointly during the relationship — typically the marital home; supports a joint asset register approach.
Expert: Children Disclosure
Optional context disclosure of existing children with explicit note that BFAs cannot bind the Court on parenting matters under Part VII FLA.
Expert: Full Disclosure & Variation
Confirms full and frank disclosure (reducing s. 90K(1)(a) risk) and prescribes a variation mechanism requiring fresh ILA for any amendment.
Setting Aside Grounds
Lists all 7 statutory grounds under s. 90K (or 90UM) for the Court to set aside the Agreement — full transparency for both Parties.
How to Create a Binding Financial Agreement
Follow these steps to prepare a BFA that satisfies the binding requirements of s. 90G or s. 90UJ of the FLA.
- 1
Choose Relationship Type and Timing
Select marriage or de facto, and choose timing (pre-relationship / during / after separation). The template automatically inserts the correct statute references (s. 90B vs 90C vs 90D for marriage; s. 90UB vs 90UC vs 90UD for de facto).
- 2
Complete Full Financial Disclosure
Both Parties must disclose all assets, liabilities, income sources, and superannuation balances. Non-disclosure is a primary ground for setting aside the Agreement under s. 90K(1)(a) / 90UM(1)(a). Add each item using the repeatable-row schedule.
- 3
Choose the Distribution Approach
Separate property (each keeps their own) is most common for pre-nups. Equal 50/50 split is simple. Proportional to contributions tracks the s. 79(4) FLA test. Custom allows bespoke arrangements (e.g., quarantined pre-marital assets + 50/50 on marital).
- 4
Engage Independent Solicitors
Each Party must consult their <strong>own independent solicitor</strong> — not the same firm. Each solicitor advises about the effect of the Agreement and its advantages and disadvantages, and signs a "Statement of Independent Legal Advice" (Solicitor's Certificate). Original certificates are exchanged before signing.
- 5
Add Expert Provisions and Sign
Use the Expert version for maintenance exclusion, inheritance and gifts, joint property acquired during the relationship, children disclosure, and full disclosure + variation mechanism. Both Parties sign in the presence of their respective solicitors. Allow adequate time before any wedding to avoid <em>Thorne v Kennedy</em> coercive-circumstances challenge — typically 28+ days minimum.
Legal Considerations
BFAs are powerful but technically demanding — independent legal advice is mandatory.
This template is for informational purposes only and does not constitute legal advice. Australian Binding Financial Agreements are highly technical and the consequences of non-compliance are severe. Both parties <strong>must</strong> obtain independent legal advice from qualified Australian family lawyers before signing. The legal cost of a properly drafted BFA is typically AUD 3,000–8,000 per party — this template is a starting point to reduce that cost, not a substitute for legal advice.
Reviewed for Australian law
Section 90G / 90UJ Binding Requirements
Under section 90G (marriage) or section 90UJ (de facto) of the FLA, an agreement is binding only if: <strong>(a)</strong> it is signed by all parties; <strong>(b)</strong> before signing, each party is provided with independent legal advice from a legal practitioner about the effect of the agreement on the party's rights and the advantages and disadvantages, at the time the advice was provided, of making the agreement; <strong>(c)</strong> either a signed statement by the legal practitioner stating that the advice was provided is annexed to the agreement, or the agreement is in writing and is signed by both parties' legal practitioners; <strong>(d)</strong> the signed statement (or the agreement signed by the practitioners) is given to the other party (or the other party's practitioner) before the agreement is signed. The certificates are commonly called "Statements of Independent Legal Advice" or "Solicitor's Certificates". Strict compliance is required: in <em>Hoult v Hoult</em> [2013] FamCAFC 109, the Full Court confirmed that imperfect compliance may invalidate the Agreement (subject to s. 90G(1A) which permits the Court to declare an agreement binding despite a technical breach where it would be unjust and inequitable not to do so).
Thorne v Kennedy and the Duress / Unconscionability Risk
The High Court decision in <em>Thorne v Kennedy</em> (2017) 263 CLR 85 is the leading modern authority on BFA enforceability. The case involved a wealthy Australian property developer who required his fiancée (a recent immigrant with little English and no independent financial resources) to sign a BFA shortly before their wedding, or the wedding would not proceed. The High Court found that the agreement was procured by both <strong>undue influence</strong> (a relational equitable doctrine) and <strong>unconscionable conduct</strong> (statutory and equitable). The agreement was set aside. The case established that the timing of the agreement (signed under wedding pressure), the disparity of financial resources, the limited choice, and the inadequate time for independent advice are all relevant factors. Best practice is to sign a pre-nuptial BFA at least 28 days before the wedding, and to have all financial disclosure and legal advice complete before any pressure point.
Section 90K / 90UM Setting-Aside Grounds
Section 90K (marriage) or 90UM (de facto) of the FLA empowers the Federal Circuit and Family Court of Australia to set aside a binding financial agreement in limited circumstances: <strong>(a)</strong> the agreement was obtained by fraud (including non-disclosure of a material matter); <strong>(b)</strong> a party entered into the agreement for the purpose of defrauding or defeating a creditor; <strong>(c)</strong> the agreement is void, voidable, or unenforceable; <strong>(d)</strong> circumstances have arisen since the agreement was made that make it impracticable for the agreement (or part of it) to be carried out; <strong>(e)</strong> since the agreement was made, a material change has occurred in the care, welfare, and development of a child of the marriage / relationship that would result in serious hardship; <strong>(f)</strong> a party engaged in unconscionable conduct in entering into the agreement; <strong>(g)</strong> a party would be unable to support themselves without an income-tested pension and the agreement excludes maintenance. The most common ground in practice is (a) — non-disclosure of a material matter.
Marriage vs De Facto
Australian family law distinguishes between marriages (governed by the <em>Marriage Act 1961 (Cth)</em>) and de facto relationships (defined in s. 4AA of the FLA as a relationship between two adults who are not legally married, are not related by family, and have a relationship as a couple living together on a genuine domestic basis). A de facto relationship qualifies for property division under Part VIIIAB if the parties have lived together for 2 years, have a child together, made substantial contributions, or the relationship is registered under State law. BFAs under Part VIIIA (marriage) and Part VIIIAB (de facto) have functionally identical binding requirements and setting-aside grounds, but the statute sections differ. The template handles the difference automatically based on the user's selection.
Cost and Time
A properly drafted Australian BFA typically costs AUD 3,000–8,000 per party in legal fees (so AUD 6,000–16,000 in total), and takes 4–12 weeks from initial instruction to signing. Costs vary with complexity (number of assets, business interests, trust structures), the experience of the solicitors, and whether negotiations are required between the parties. Pre-nuptial agreements are typically signed at least 28 days before the wedding to reduce the <em>Thorne v Kennedy</em> coercive-timing risk. The template can substantially reduce the legal cost by providing a starting structure; both parties should still obtain independent legal advice and pay for the Solicitor's Certificate (typically AUD 1,500–3,000 per party).
Frequently Asked Questions
Protect Your Financial Future with Certainty
Create a state-of-the-art Australian Binding Financial Agreement — covering all six FLA timing variants and both marriage and de facto. Full and frank disclosure framework, expert clauses, and Thorne v Kennedy compliance. Download the PDF to take to your independent solicitor in minutes.
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