Prenups are enshrined in law under Section 90B of the Family Law Act 1975, meaning they are legally binding and enforceable.

Prenups are enshrined in law under Section 90B of the Family Law Act 1975, meaning they are legally binding and enforceable.

However, the courts can set a prenup aside if they believe that the agreement doesn't comply with the requirements of the law.

In Australia, a prenuptial agreement is referred by the Family Law Act as a Binding Financial Agreement (BFA). A prenup is a legally binding financial agreement between two people who are meaning to get married (a similar agreement can be prepared if two people are planning to live together in a de facto relationship).

What voids a prenup?

The most common grounds to dissolve a prenuptial agreement include coercion or duress, unconscionability, and failure to disclose. The courts will generally enforce prenuptial agreements; however, when one or more of these grounds exist, the court may see fit to void all or parts of a prenup.  One potential way to get a prenup thrown out is if you can prove that your spouse wasn't completely forthcoming about assets he had in his possession. A judge may throw a prenup out if you are able to prove that your ex intentionally hid assets.Spousal abuse or cheating does not void or invalidate a prenuptial or partition agreement unless the agreement specifically states that. Most prenuptial or partition agreements do not mention abuse or cheating. Admittedly prenups are not perfect and don't account for the passage of time, adding they are invalidated by the court a little less than 50 percent of the time.

Do Prenups Expire? Prenups do not expire unless you have a specific clause in your prenuptial agreement stating an expiration date. Your prenup will remain valid for as long as you are married, unless both parties consent to an amendment or revocation.

A prenup allows you to separate your debt from the debts of your spouse by “waiving” the application of community property. Designation of separate debts will limit the creditors from collecting from the separate debtor. There will be no community debt.

The standard premise of a BFA is that what’s yours is yours, what’s mine is mine, and whatever we acquire during the relationship is split 50/50, Tuskeen says. However, you can decide on your own arrangements, so long as you both agree to them. “BFAs are purely financial and set out how to divide the assets,” she adds.

The Family Court can set aside a BFA in limited cases such as fraud or one party signing under duress, says Tuskeen. But the court will generally try to uphold the agreement. To limit the potential for future problems, both partners are required to obtain independent legal advice before signing, and the lawyers must sign the agreement to say that they have provided this advice.

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