Home → Services → Family Law Services → Binding Financial Agreements & Prenup Lawyers in Adelaide
A properly prepared financial agreement can give couples greater clarity about property, debts, businesses, financial resources and maintenance if their relationship later ends. Commonly called a “prenup” when made before marriage, these documents are known under Australian family law as financial agreements or binding financial agreements.
O’Dea Lawyers assists clients in Adelaide, Mount Barker and across South Australia with drafting, reviewing and obtaining independent legal advice about financial agreements for married and de facto relationships.
A financial agreement involves significant legal and financial consequences. The word “binding” is not an automatic guarantee that every agreement will be enforceable. Careful preparation, independent advice and compliance with the Family Law Act 1975 are essential.
Request a confidential consultation to discuss your proposed agreement.What is a binding financial agreement?
A financial agreement is a private contract made under the Family Law Act 1975. If it is binding and properly prepared, it can determine how some or all financial matters will be handled and can limit the Court’s ability to make orders about those matters.
Unlike consent orders, a financial agreement is not ordinarily submitted to the Court for approval when it is made. Each party must therefore understand its effect and obtain independent legal advice before entering into it.
A financial agreement can address all aspects of a couple’s financial relationship or only selected issues. The appropriate scope depends on the relationship, the assets involved and what the parties want the agreement to accomplish.
Prenups and other types of financial agreements
“Prenup” is an everyday term generally used for an agreement made before marriage. The Family Law Act permits broader types of financial agreements.
Before marriage or a de facto relationship
An agreement can record how existing and future property, debts and financial resources will be dealt with if the relationship ends. This may be relevant where one person enters the relationship with significantly greater assets, business interests, expected inheritances or obligations from a previous relationship.
During marriage or a de facto relationship
Couples can make a financial agreement after their relationship has commenced. This may occur when they acquire property, restructure a business, receive an inheritance or want greater certainty about their financial arrangements.
After separation or divorce
Former partners may use a financial agreement to resolve property and maintenance issues after their relationship ends. Consent orders may be another option. The appropriate method depends on the circumstances, the proposed settlement and the advice each person receives.
When might a financial agreement be useful?
A financial agreement may be worth considering where one or both parties have:
- A home, investment property or substantial savings
- Business, company, partnership or trust interests
- Children from an earlier relationship
- An expected inheritance or family wealth
- Significant superannuation interests
- Overseas property or financial interests
- Personal, business or taxation-related debts
- Financial support from parents or other family members
- A substantial difference in income or asset ownership
- Existing obligations under an earlier property settlement
A financial agreement is not appropriate for every couple. Its usefulness depends on whether the proposed terms are practical, properly informed and suited to the parties’ actual circumstances.
What can a financial agreement cover?
Depending on its type and drafting, a financial agreement may address:
- Property owned when the agreement is made
- Property acquired later
- The family home and investment properties
- Bank accounts, investments and financial resources
- Business, company, partnership and trust interests
- Personal and business liabilities
- Inheritances and family financial contributions
- The treatment of superannuation interests where statutory requirements are met
- Financial support or maintenance between partners
- How particular assets or liabilities will be dealt with after separation
- Incidental matters needed to implement the financial arrangements
The agreement should reflect the parties’ real circumstances rather than relying on a generic template.
Parenting arrangements cannot be predetermined simply by including them in a financial agreement. Decisions concerning children are governed by the child’s best interests. Child support also operates under a separate statutory framework and may require a separate child-support agreement or assessment.
Why independent legal advice is mandatory
Each party must receive independent legal advice from an Australian legal practitioner before entering into a financial agreement.
That advice must address the effect of the agreement on the person’s rights and the advantages and disadvantages of entering into it at that time. The statutory documentation associated with that advice must also be handled correctly.
One lawyer cannot provide independent advice to both parties. O’Dea Lawyers can act for one party by:
- Drafting a proposed financial agreement
- Reviewing an agreement prepared by the other party’s lawyer
- Advising on its effect, advantages, disadvantages and risks
- Negotiating appropriate revisions
- Preparing the required advice documentation
- Assisting with a termination agreement or replacement agreement where appropriate
The other party must engage a separate lawyer.
Our financial-agreement process
1. Initial consultation
We discuss your relationship, objectives, proposed arrangements and any important deadlines. We identify the type of agreement required and whether another method of formalising the arrangements should also be considered.
2. Financial information and disclosure
We develop a clear picture of the property, liabilities, financial resources, business interests and other matters relevant to the proposed agreement.
Complete and accurate financial information is important. Fraud, including material non-disclosure, can create significant risks and may provide grounds for an agreement to be challenged.
3. Advice and drafting
We explain the legal effect of the proposed arrangements and prepare or review terms tailored to the circumstances. Complex structures may require information from accountants, financial advisers, valuers or other professionals.
4. Independent advice for the other party
The other party takes the proposed agreement to their own lawyer. Their lawyer must provide genuinely independent advice and may recommend amendments.
5. Negotiation and revision
Where changes are proposed, the lawyers work through the outstanding issues. Adequate time should be allowed for questions, disclosure, advice and genuine negotiation.
6. Signing and records
Once the terms are settled and the required advice has been provided, the agreement and associated documents are signed and exchanged correctly. Each party should retain the final agreement and advice documentation securely.
Why financial agreements can be challenged
Financial agreements are technical documents. The Court can set one aside in circumstances prescribed by the Family Law Act.
Depending on the facts, issues may include:
- Failure to satisfy statutory requirements
- Fraud, including material non-disclosure
- Duress, undue influence or unconscionable conduct
- An agreement that is void, voidable or unenforceable
- Circumstances making it impracticable to carry out the agreement
- Certain material changes involving the care or welfare of a child that would cause hardship
- Problems with the way the agreement was drafted, advised upon, signed or implemented
This is not an exhaustive list. An agreement should not be promoted as “unbreakable” or guaranteed to withstand every future challenge.
Starting the process well before a wedding or other deadline allows both parties proper time to consider disclosure, obtain advice and negotiate without unnecessary pressure.
Financial agreements versus consent orders
Financial agreements and consent orders are different legal mechanisms.
A financial agreement:
- Can be made before, during or after a marriage or de facto relationship
- Requires each party to receive independent legal advice
- Is not ordinarily approved by the Court when made
- Can address all or selected financial matters
- May be challenged or set aside in specified circumstances
Consent orders:
- Are generally used when parties have reached agreement about property or financial matters
- Are submitted to the Court for approval
- Become court orders if approved
- Must satisfy the Court’s applicable legal requirements
If you have already separated, O’Dea Lawyers can explain whether a financial agreement, consent orders or another pathway is more suitable. Learn more about our family-law property-settlement services.
Information to bring to your consultation
Where available, bring:
- A summary of your assets, liabilities and financial resources
- Recent bank, loan and superannuation statements
- Property details and available valuations
- Company, partnership or trust documents
- Information about expected inheritances or family contributions
- Details of any overseas assets
- Existing financial agreements, court orders or property settlements
- Your proposed wedding or relationship timeline
- Any draft agreement or correspondence already received
- A summary of the outcome you want the agreement to achieve
If you do not yet have every document, bring what is available. We can identify what else is required.
Fees and timeframes
The cost and timeframe depend on the agreement’s complexity, the quality of the financial information, the number and type of assets, whether businesses or trusts are involved and how many amendments are required.
After reviewing the circumstances, we can provide a written scope and cost information for the work O’Dea Lawyers will perform.
Where an agreement is being considered before a wedding or major transaction, obtain advice as early as possible. Leaving the process until the last moment can limit the time available for disclosure, independent advice and genuine negotiation.
Frequently asked questions
Is a prenup legally binding in Australia?
A financial agreement can be binding when the requirements of the Family Law Act are satisfied. However, enforceability depends on the agreement, the advice provided, the surrounding circumstances and how the statutory requirements were handled. No responsible lawyer should promise that an agreement can never be challenged.
Can we make an agreement after getting married?
Yes. Financial agreements may be made before, during or after marriage. Different statutory provisions apply depending on when the agreement is made.
Can de facto couples make financial agreements?
Yes. De facto couples may make financial agreements before, during or after their relationship, subject to the applicable requirements.
Do we need separate lawyers?
Yes. Each party must receive independent legal advice. The same lawyer cannot independently advise both parties about the agreement.
Do we need to disclose all assets?
Complete and accurate disclosure is important. Material non-disclosure can create serious risks and may contribute to an application to set the agreement aside.
Can a financial agreement determine child custody?
No. Parenting arrangements are determined according to the child’s best interests and cannot be conclusively predetermined through a financial agreement.
Does a financial agreement determine child support?
Child support is governed by a separate statutory scheme. A separate child-support agreement or Services Australia assessment may be required.
Can a financial agreement be changed later?
A financial agreement should not be amended casually. Depending on the circumstances, the parties may need a compliant termination agreement and a properly prepared replacement agreement, with fresh independent legal advice.
Does a financial agreement replace a will?
No. Financial agreements and estate-planning documents perform different functions. They should be reviewed together so that inconsistent provisions and unintended consequences can be identified.
How long does preparing an agreement take?
Timeframes depend on complexity, disclosure, negotiations and how quickly both parties obtain advice. Begin early, particularly where a wedding, property transaction or restructuring deadline is approaching.
Speak with a binding financial agreement lawyer in Adelaide
O’Dea Lawyers assists with binding financial agreements and prenups for married and de facto couples in Adelaide, Mount Barker and across South Australia.
We can draft a proposed agreement, review an agreement you have received, provide independent advice and help negotiate amendments appropriate to your circumstances.
Request a confidential consultation to discuss the agreement and the next steps.
Prepared by: O’Dea Lawyers Family Law Team
Legally reviewed by: Damien O’Dea, Principal
Last legally reviewed: 2 August 2026
Court guidance on financial agreements
Family Law Act 1975