Why You Should Always Get a Family Lawyer to Review a Prenup

Getting married or entering a de facto relationship is one of life’s most exciting milestones.But while you’re planning your future together, it’s worth considering what might happen if things don’t work out as planned.

That’s where a prenuptial agreement comes in – and more importantly, why you absolutely need a family lawyer to review it.

What Exactly Is a Prenup?

In Australia, what we commonly call a “prenup” is officially known as a Binding Financial Agreement (BFA) under the Family Law Act 1975. Think of it as a roadmap for your finances if your relationship ends.

These agreements are legally recognised documents that can cover property division, investments, debts, inheritances, and even spousal maintenance arrangements.

Here’s something that might surprise you: according to recent data, one in three Australian marriages will end in divorce, and the latest Australian Bureau of Statistics figures show 48,700 divorces were granted in 2023.

While these statistics might feel uncomfortable to consider when you’re planning your wedding, they highlight why having a clear financial agreement can be incredibly valuable.

Why DIY Prenups Don’t Work

You might be tempted to download a template online or draft something yourself. After all, how complicated can it be? The reality is that Australian law surrounding prenups is incredibly complex and unforgiving.

For a binding financial agreement to be valid, it must meet strict statutory requirements under the Family Law Act. These include:

1. Written agreement signed by both parties
2. Complete financial disclosure from both partners
3. Independent legal advice for each person
4. Signed certificates from lawyers confirming advice was provided
5. Fair and reasonable terms for both parties

Miss even one of these requirements, and your prenup could be worthless. Under the Family Law Act 1975, if a prenup doesn’t meet these guidelines, it can be overturned.

Imagine discovering during a separation that the agreement you thought protected you is actually invalid – leaving you facing lengthy court battles and uncertain outcomes.

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What Makes Independent Legal Advice So Critical?

The law doesn’t just suggest you get legal advice – it demands it.

Both parties must obtain independent legal advice before the agreement is signed, and the lawyers must sign a statement to confirm they have provided that advice. But this isn’t just a legal checkbox; it’s protection for both of you.

Real Understanding of Your Rights

A qualified family lawyer will explain exactly what you’re giving up or gaining under the agreement. The advice must be real and meaningful, directed to your specific circumstances and present rights. They’ll identify what your rights would be under standard family law if you didn’t have a prenup, then compare this to what the agreement provides.

Spotting Potential Problems

Experienced family lawyers can identify clauses that might cause problems later. They understand how courts interpret these agreements and can spot language that might be considered unfair or unenforceable. Courts can set aside agreements obtained through fraud, made under duress, or when circumstances have materially changed.

Future-Proofing Your Agreement

Life changes. You might have children, start a business, inherit property, or face health challenges. A prenup must consider future possibilities like having children – if this isn’t mentioned and you later have kids, the agreement may not be legally binding. A skilled lawyer will help you anticipate and address these scenarios.

The Hidden Costs of Getting It Wrong

While hiring a family lawyer involves upfront costs, the price of getting it wrong can be devastating.

Typically, a prenup can cost $5,000 to $10,000 for each party, as each person needs separate legal representation. This might seem significant, but consider the alternatives.

Without a valid prenup, you could face:

1. Lengthy court proceedings lasting months or years
2. Expensive legal battles with unpredictable outcomes
3. Loss of privacy as your financial affairs become public record
4. Emotional stress and family conflict
5. Potential loss of assets you thought were protected

If a separation has to go through the Family Court, it can drag on with both parties paying hefty legal costs. An effective prenup can completely remove, or at least reduce, time and pain spent in the Family Court system.

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Mistakes That Invalidate Prenups

Even well-intentioned couples can make critical errors that render their prenup useless:

Insufficient Financial Disclosure

Non-disclosure on a prenup agreement can create issues and potentially invalidate it. Both parties must provide complete and honest details about all assets, debts, and financial interests. Accidentally forgetting to mention a small investment account or deliberately hiding assets can destroy the entire agreement.

Timing Problems

The agreement should be signed well in advance of the wedding or de facto relationship. Rushed decisions or last-minute changes can lead to disputes over its fairness. Courts are particularly suspicious of prenups signed just days before a wedding, as this can suggest pressure or duress.

Unfair Terms

For a prenuptial agreement to be legally binding, it must be fair and reasonable. The terms must not be unduly biased in favour of one party. What seems fair now might not seem fair later, especially if circumstances change dramatically.

Ignoring Future Changes

Many couples create prenups based on their current situation without considering how life might evolve. What happens if one partner becomes a stay-at-home parent? What if someone develops a disability? A good lawyer will help you plan for these possibilities.

Advantages of Getting a Family Lawyer

A family lawyer brings more than legal compliance – they offer strategic thinking that can strengthen your relationship and protect your interests.

Facilitating Difficult Conversations

Money talks can be awkward, but they’re essential. In order to create a prenup, you and your partner must have open and honest conversations about assets and future plans, which often reduces the prospect of ever breaking up. A lawyer can guide these discussions professionally and objectively.

Customising for Your Unique Situation

Prenups are especially useful for second marriages where you have assets to pass to children from your first marriage, when one party has significantly more property, or to protect family businesses. Your lawyer will tailor the agreement to your specific circumstances rather than using a one-size-fits-all approach.

Privacy and Control

Only the parties and their lawyers are involved in working out the terms of the agreement. This is very different from court proceedings, where family and friends can be called as witnesses. With a properly drafted prenup, you maintain control over your financial destiny.

The Growing Acceptance of Prenups

Prenups were once viewed as unromantic or bad luck, but are now considered a sensible precaution, especially for those entering second or third marriages.

Modern Australian couples increasingly see prenups as practical financial planning rather than planning for failure.

This shift reflects broader changes in how Australians approach relationships. The median age at marriage has increased to 32.9 years for men and 31.2 years for women, meaning couples often enter marriage with more established careers, property, and financial obligations than previous generations.

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Regular Reviews Keep Your Agreement Current

Your prenup isn’t a “set and forget” document. It’s essential to regularly review your agreement, say every five years, or in response to significant life events not initially considered. A family lawyer can help you determine when updates are needed and ensure any modifications are legally valid.

Make the Smart Choice for Your Future

Getting a family lawyer to review your prenup isn’t about lacking trust in your partner – it’s about making intelligent financial decisions.

These legal agreements can benefit couples of all financial backgrounds by offering clarity and certainty, providing protection and security, facilitating a smooth process, and saving time and cost.

Your prenup could be one of the most important documents you ever sign. Don’t leave its validity to chance. While the upfront investment in proper legal advice might seem substantial, it pales in comparison to the potential costs of an invalid agreement or contested divorce proceedings.

If you’re considering a prenup or already have one that hasn’t been professionally reviewed, don’t wait.

The legal landscape around binding financial agreements continues to evolve, and what seemed adequate years ago might not meet current standards.

Ready to protect your financial future? Contact us today for expert advice on prenuptial agreements.

Our experienced family law team will ensure your agreement is legally sound, fair, and tailored to your unique circumstances. Don’t leave your financial security to chance – get the professional guidance you deserve.