Binding Financial Agreements also known as Prenuptial Agreements, or prenups, are a type of legal Financial Agreement that allow you to opt out of standard property laws. Instead, you can devise your own arrangement with your partner for how your shared assets will be divided if your relationship ends.

These agreements need to be prepared correctly, otherwise they may not be legally enforceable. There are a number of provisions that must be met in order for a prenup to be effective in the event that you separate.

No. Whilst you might not consider your assets worthy of protecting with a Financial Agreement, you’d be surprised how expensive it can be for individual parties to set themselves up again after a relationship ends. This is why, even if you don’t consider yourself ‘wealthy’ , a prenup or postnup is a good idea.

A prenup can also save you money in the event of a future breakup, protecting your assets and protecting you from being negatively impacted by your partner’s debts.

In terms of the actual cost of a prenup or postnup, there are legal costs involved (both parties in the relationship must get independent legal advice). In addition, the more back and forth there is between individuals and lawyers, the more legal fees may mount up. This is why it’s a good idea to work with a professional separation service for your prenup/postnup. They will ensure you have everything you need to create your Financial Agreement, so that when you get to the stage of seeing your lawyers, the process is more seamless.

A professional separation service, like Simple Separation, will also usually work for a fixed fee, which means you know up front how much the entire process will cost, with no surprises.

When bringing up the idea of a prenuptial agreement, it’s worth initiating the conversation well in advance of when you marry or cohabitate, (although a postnup is still possible after these events occur). Having discussions early can establish where you both stand financially, and what you want for your futures. Here are some additional tips:

Make sure you bring up the subject of a prenup at a time when you are both calm, aren’t stressed or arguing, and have quiet, uninterrupted time to discuss the subject openly. You may need to give your partner some extra time to think about it before you start the conversation, and allow plenty of opportunities to return to the subject if needed.

When having the discussion, be honest about the reasons why you want a prenuptial agreement, and talk about what you want for your financial future in terms of goals and security.

You will both need to be transparent about your assets, debts, investments and so on.

If your partner is concerned that they won’t get a fair deal out of the Financial Agreement, you can let them know that it is a requirement that both parties to a prenup receive individual legal advice, which means they have the opportunity to fully understand the implications of the agreement before it is drafted and signed.

You can also let your partner know about Simple Separation, and our Prenup/Postnup fixed-price services, which can make the process smooth and affordable for you both.

A prenup covers matters pertaining to the financial aspects of your relationship with your married or de facto partner. These include debts, investments, inheritances, spousal maintenance and property division.

No. A Binding Financial Agreement (prenup or postnup) can’t contain terms regarding child custody or support matters. These matters need to be handled separately.

What can be included is matters relating to the financial aspects of a relationship, such as investments, debts, inheritances, property division, and spousal maintenance.

Prenups and postnups are essentially the same thing—a Financial Agreement—but they are drawn up at different stages of a relationship. A prenup is created prior to marriage or cohabitation, and a postnup is created after marriage/cohabitation has commenced. As they are both ‘Financial Agreements’, they cover the same territory in terms of what’s included in the agreement, and the same key provisions apply.

Yes. This is normally called a postnup, and is also a Financial Agreement. The same financial aspects of a relationship are covered in both a prenup and a postnup, those being investments, debts, inheritances, property division, and spousal maintenance.

A BFA can save you the pain of negotiating distribution of your assets at the time of a breakup, when your relationship with your partner may be strained.

Many people also prefer to have a prenup set up, as it creates clarity around assets and finances during the relationship—both partners know where they stand and some of the uncomfortable feelings surrounding finances can be alleviated.

To start with:

Think about what assets you want to protect with a prenup.

Talk to your partner about your desire for a prenup, and see how they feel about it. Discuss your financial circumstances, and how you picture your financial future.

If you both agree to a prenup, there are two avenues you can take. These are:

Find your own lawyers (you each need individual legal advice when creating a Financial Agreement). Remember, legal fees can quickly add up, especially if multiple legal meetings, emails and phone calls take place.

Or

Work with a professional separation service, like Simple Separation, who handle your prenup/postnup for a fixed fee. We will assist you through the process of getting your documentation prepared, and will match each of you with legal assistance from our trusted pool of lawyers.

Once you have defined what assets will and will not be considered in the asset pool when parties separate, the Financial Agreement is then created, and each party must sign the agreement before a witness.

You can create a prenup prior to marriage or entering into a de facto relationship, or after you are already married/de facto (this is termed a postnup, but is essentially the same type of Financial Agreement as a prenup).

Yes, however they can be overturned if certain key provisions aren’t met. See the next question.

A prenup or postnup can be challenged if:

either party didn’t receive independent legal advice before signing the agreement

the lawyers for either party have not included a declaration that they provided legal advice regarding the implications of the Binding Financial Agreement.

the agreement was not made in writing, and was not signed by both parties, and witnessed.

it is found that one or both parties failed to fully disclose details about their financial situation, assets and liabilities.

there was any ‘unconscionable conduct’ or ‘unfairness’ in the creation of the prenup. For example, if one party signed the agreement under duress or undue influence, or if one party was particularly vulnerable.

circumstances have changed significantly since the prenup was signed, and the prenup is no longer considered relevant or fair. A change in circumstance might include:

You’ve had children

Your or your partner’s health or employment circumstances have changed

You or your partner are set to receive, or have received, a financial windfall, such as an inheritance

You or your partner have entered into a business, and the other partner wants their financial interests protected.

A Binding Financial Agreement, or prenup/postnup, protects your assets in the event of a divorce by clearly defining the ownership and division of your property, financial assets, and debts acquired before and during your marriage. It can ensure that both yours and your partner's individual assets remain your own, specifies how joint assets are to be divided, and can outline spousal support arrangements, if you wish those to be included.

By having these terms agreed upon in advance of a separation, a prenup provides clarity and security for both you and your partner, and reduces potential conflicts and legal disputes.

A sunset clause is a clause in your Binding Financial Agreement (prenup or postnup) that stipulates that the agreement is only valid until a certain date. At that point, if you wish to continue with the agrement, you can either present it to your respective lawyers again, with a request to extend the date, or change the BFA so that it continues on an indefinite basis.

Alternatively, you may wish to change terms in your agreement, in which case again, you would revise the existing prenup, with independent legal advice for each partner.