Free Prenuptial Agreement

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Prenuptial Agreement

Location

Where do both parties live?

Australian Capital Territory

Built for the Australian Capital Territory
Different states and territories have different rules and regulations. Your Prenuptial Agreement will be customised for the Australian Capital Territory.

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Frequently Asked Questions

What is a Prenuptial Agreement?A Prenuptial Agreement, also known as a financial agreement, sorts out current and future financial and property issues before marriage. In general, it sets out who the parties are, describes their current property and debt, and explains how all current and prospective property will be dealt with in the event of a breakup.

This Agreement also deals with issues such as spousal support, inheritance, and dependent children.Can I create a prenup if I'm already married?Prenuptial Agreements are contracts that are executed before marriage to specify how to divide current and future property in the event of a breakup. You cannot create a Prenuptial Agreement after you are married, but you can create a Postnuptial Agreement. A Postnuptial Agreement is similar to a prenup but may offer less asset protection because once you are married, many of your assets could already be considered marital property.What if the parties do not live in the same state or territory?If the parties currently reside in different states or territories, then usually you should choose the state or territory where both parties will live after marriage (e.g. If one party resides in Victoria and the other party resides in Queensland and both will live in Victoria after marriage, then select Victoria).

However, if neither party currently resides in the state or territory you will live in after marriage, then you can select the state or territory where either party currently resides (e.g. If one party resides in New South Wales and the other party resides in Queensland and both will live in Victoria after marriage, then select either New South Wales or Queensland).

Your Prenuptial Agreement

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FINANCIAL AGREEMENT

THIS FINANCIAL AGREEMENT (the "Agreement") MADE ON ____ ________________ ________.

BETWEEN:

______________________
of __________

- AND -

______________________
of __________

RECITALS
This Agreement is made between ______________________ and ______________________ (collectively the "Parties" and individually a "Party") who are contemplating marriage each to the other.
This agreement is made before marriage under Section 90B of the Family Law Act 1975.
The Parties intend for this Agreement to become effective upon their marriage pursuant to the laws of the Commonwealth of Australia, including the Family Law Act 1975 , or other applicable laws, adopted by the Commonwealth of Australia.
The Parties wish to enter into this Agreement to provide for the status, ownership, and division of property between them, including future property owned or to be acquired by either or both of them.
The Parties further wish to affix their respective rights and liabilities that may result from this relationship.
The Parties recognise the possibility of unhappy differences that may arise between them. Accordingly, the Parties desire that the distribution of any property that either or both of them may own will be governed by the terms of this Agreement and, insofar as the statutory or case law permits, intend that any statutes that may apply to them, either by virtue of Commonwealth or Territorial legislation, will not apply to them.
The Parties acknowledge that they have been provided with a reasonable period of time to review this Agreement.
The Parties also acknowledge that they each have retained their own lawyer and received independent legal advice regarding the terms of this Agreement.
The Parties have disclosed to their satisfaction all assets and liabilities that each may have and voluntarily and expressly waive any other rights to disclosure of the property or financial obligations of each other beyond the disclosure provided.
Each Party agrees and affirms THAT:
1. The Parties did execute the Agreement voluntarily;
2. This Agreement was not unconscionable when it was executed;
3. Prior to execution of the Agreement, both Parties were provided a fair and reasonable disclosure of the property or financial obligations of the other Party;
4. Each Party has, or reasonably could have had, an adequate knowledge of the property or financial obligations of the other Party; and
5. Each Party entered into this Agreement freely and under no duress or undue influence on their decision by the other Party.
The Parties acknowledge that this Agreement will continue upon termination of marriage whether by death, divorce, or otherwise.

NOW THEREFORE in consideration of the upcoming marriage, and in consideration of the mutual promises and covenants contained in this Agreement, the Parties agree as follows:

PROPERTY
The Parties acknowledge that this Agreement will govern any determination of ownership of property that may occur in the event of the Parties separating, or upon the death of a Party.
All jointly acquired or jointly held property, however and whenever acquired, will remain the property of and be owned by both Parties and will be treated as shared property (the "Shared Property").
Except as otherwise provided in this Agreement, all property will be treated as property owned solely by either one of the Parties (the "Separate Property") except where:
1. it is Shared Property; or
2. there is proof of shared legal ownership.
Nothing in this Agreement will prevent or invalidate any gift, or transfer for value, from one Party to the other of present or future property.
Unless a Party can reasonably show that they solely own a piece of property, where either Party commingles jointly owned property with Separate Property, any commingled property will be presumed to be Shared Property.
DEBTS
The Parties acknowledge that this Agreement will govern any determination of responsibility of debts that may occur in the event of the Parties separating, or upon the death of a Party.
All jointly acquired or jointly held debts, however and whenever acquired, will remain the debts of and be owed by both Parties and will be treated as shared debts (the "Shared Debts").
Except as otherwise provided in this Agreement, all debts will be treated as debts owed solely by either one of the Parties (the "Separate Debts") except where:
1. it is Shared Debt; or
2. there is proof of shared legal responsibility.
SUPPORT
In the event of a separation the Parties agree that spousal support may be payable to one of the Parties on the basis of the Party's financial circumstances at the time of separation or otherwise. It is understood and accepted by each Party that spousal support will be determined according to the appropriate Commonwealth or State laws.
ESTATES AND TESTAMENTARY DISPOSITION
Nothing in this Agreement will limit or affect any rights that each may acquire as spouse or surviving spouse in the property, assets or estate of the other spouse.
Nothing in this Agreement will invalidate or prevent either Party from naming the other as a beneficiary by will or other testamentary disposition.
SEVERABILITY
Should any portion of this Agreement be held by a court of law to be invalid, unenforceable, or void, such holding will not have the effect of invalidating or voiding the remainder of this Agreement, and the Parties agree that the portion so held to be invalid, unenforceable, or void, will be deemed amended, reduced in scope, or otherwise stricken only to the extent required for purposes of validity and enforcement in the jurisdiction of such holding.
INTENTION OF THE PARTIES
Notwithstanding that the Parties acknowledge and agree that their circumstances at the execution of this Agreement may change for many reasons, including but without limiting the generality of the foregoing, the passage of years, it is nonetheless their intention to be bound strictly by the terms of this Agreement at all times.
DUTY OF GOOD FAITH
This Agreement creates a fiduciary relationship between the Parties in which each Party agrees to act with the utmost of good faith and fair dealing toward the other in all aspects of this Agreement.
FURTHER DOCUMENTATION
The Parties agree to provide and execute such further documentation as may be reasonably required to give full force and effect to each term of this Agreement.
TITLE/HEADINGS
The headings of this Agreement form no part of it, and will be deemed to have been inserted for convenience only.
ENUREMENT
This Agreement will be binding upon and will enure to the benefit of the Parties, their respective heirs, executors, administrators, and assigns.
GOVERNING LAW
The laws of the Commonwealth of Australia will govern the interpretation of this Agreement, and the status, ownership, and division of property between the Parties wherever either or both of them may from time to time reside.
TERMINATION OR AMENDMENT
This Agreement may only be terminated or amended by the Parties in writing signed by both of them.
ENTIRE AGREEMENT
The Agreement constitutes the entire agreement and understanding between the Parties to this Agreement and supersedes all prior communications, contracts, or agreements between these Parties with respect to the subject matter addressed in this Agreement, whether oral or written.

IN WITNESS WHEREOF the Parties have hereunto set their hands and seals on ____ ________________ ________.

SIGNED, SEALED AND DELIVERED
In the presence of:

_____________________________
Witness
Printed Name: _________________

________________________
______________________

_____________________________
Witness
Printed Name: _________________

________________________
______________________

CERTIFICATE OF INDEPENDENT LEGAL ADVICE

THE AUSTRALIAN CAPITAL TERRITORY

I, ________________________, of the City of ___________________, in the Australian Capital Territory, Solicitor, DO HEREBY CERTIFY:

THAT I was this day consulted in my professional capacity by ______________________, named in the within instrument, being a Financial Agreement, separate and apart from ______________________, as to his legal rights and liabilities under the terms and conditions of the said Financial Agreement, and that I acted solely for him. I explained fully to him the nature and effect of the said Financial Agreement on his rights and the advantages and disadvantages to him of entering the said Financial Agreement. He did execute the said Financial Agreement in my presence, and did acknowledge and declare that he was executing it of his own volition and without any fear, threats, compulsion or influence from ______________________, or any other person.

DATED at the City of ___________________, in the Australian Capital Territory this ____________ day of _________, 20___.

________________________
SOLICITOR
Print Name: _____________

I, ______________________, the person named in the annexed Financial Agreement, hereby acknowledge the foregoing this ____day of ______________20___.

________________________
______________________

CERTIFICATE OF INDEPENDENT LEGAL ADVICE

THE AUSTRALIAN CAPITAL TERRITORY

I, ________________________, of the City of ___________________, in the Australian Capital Territory, Solicitor, DO HEREBY CERTIFY:

THAT I was this day consulted in my professional capacity by ______________________, named in the within instrument, being a Financial Agreement, separate and apart from ______________________, as to her legal rights and liabilities under the terms and conditions of the said Financial Agreement, and that I acted solely for her. I explained fully to her the nature and effect of the said Financial Agreement on her rights and the advantages and disadvantages to her of entering the said Financial Agreement. She did execute the said Financial Agreement in my presence, and did acknowledge and declare that she was executing it of her own volition and without any fear, threats, compulsion or influence from ______________________, or any other person.

DATED at the City of ___________________, in the Australian Capital Territory this ____________ day of _________, 20___.

________________________
SOLICITOR
Print Name: _________________

I, ______________________, the person named in the annexed Financial Agreement, hereby acknowledge the foregoing this ____day of ______________20___.

________________________
______________________

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Last Updated December 13, 2024

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What is a Prenuptial Agreement?

A Prenuptial Agreement, commonly referred to as a prenup, is a contract that a couple creates before getting married. It outlines current and future financial responsibilities in case of divorce, separation, or the death of a spouse. It’s key to preparing for the future and creating a financial plan before marriage.

Legally, in Australia, a prenup is called a binding financial agreement. Therefore, LawDepot’s template is titled Financial Agreement. A prenup is also known as a marriage or antenuptial agreement.

Our template can be customised for those who reside in:

Australian Capital Territory
New South Wales
Northern Territory
Queensland
South Australia
Tasmania
Victoria
Western Australian

If you’re a couple who lives together but is not planning to get married, you’re also known as a de facto relationship. In this case, you can use the LawDepot Cohabitation Agreement to create a financial plan similar to a prenup.

What does a Prenuptial Agreement do?

A Prenuptial Agreement outlines key details about the ownership of physical and monetary assets. It also describes your and your partner’s financial responsibilities if you separate or divorce. More specifically, a prenup outlines:

Separately owned assets
The division of shared assets
The division of joint debts
Spousal support, also known as spousal maintenance
Spousal inheritance

Additionally, our template asks you to include the names of your and your partner’s children. It asks you to list the names of your and your partner’s children from previous relationships who may influence how inheritances are distributed when a spouse passes away.

Benefits of a Prenuptial Agreement

There are several benefits to having a Prenuptial Agreement for both you and your fiance. To start, it can reduce conflict during a divorce case or separation. With a prenup, you plan for the worst-case scenario while having level heads. Without a prenup, you and your fiance might be fueled by negative emotions during a separation or divorce, and conflict can escalate.

Having these details in writing also creates transparency in your marriage as you plan what you want for the future. Setting out clear expectations creates honesty and promotes frank conversations. For example, being honest and managing debt liability can ensure that one of you isn’t responsible for the other’s pre-existing debts in the future.

A prenup goes further to protect children from previous relationships. It can ensure that inheritance provisions prioritise children when one of you passes away.

Lastly, a prenup can help save time during court proceedings in the case of divorce, separation, or death, as you’ll already have a legally binding agreement that you both agree upon.

Who should sign a prenup?

Prenuptial Agreements are not just for the rich and famous. Any engaged couple wanting to protect themselves and their assets can sign one.

Creating a prenup can help you protect the personal assets you bring into a marriage. At the same time, you can clearly outline debt ownership to protect each other from liability.

Although prenups can be for any couple, you should especially consider signing one if any of the following applies to your circumstances:

One partner has significant debt
You have children from previous relationships
You own intellectual property or creative assets
You have a significant difference in income
One of you has a significant inheritance or family wealth

Say you own a successful business before meeting your partner, which will be a significant source of your marital income. Your prenup can outline this as a separate asset. If your marriage ends, the agreement will keep the business in your name, and you won’t need to divide it during a divorce. Your prenup can assure your fiance that, even though they won’t receive a share of that asset, they’ll get spousal support.

How to write a Prenuptial Agreement

Use LawDepot’s customisable template to easily create your own prenup with your future spouse. First, select your state or territory to ensure it follows state requirements. Then, complete the following steps:

1. Give both parties’ details

Include your and your future spouse’s contact details and information. If you and your fiance don’t live together, you must include both of your home addresses in your agreement.

2. Disclose separate and shared assets

Generally, separate property means assets and property you acquired before marriage. This property could be businesses, banking accounts, real estate, or anything else in your name. You may also gain separate property after marriage, like an inheritance you wish to keep in only your name.

It’s crucial to disclose both parties’ separate assets in your agreement. Fully outlining these assets will better protect them in case of separation or divorce.

You’ll acquire shared assets and property throughout your marriage. However, it is possible to also have shared assets before getting married. Shared assets are things like joint bank accounts, real estate, and vehicles in both partners’ names. Shared assets need to be fully documented within your prenup.

If you separate, a prenup determines how your shared property is divided. Division can be:

Each party receiving 50% of the assets
Based on each party’s financial contribution

You can also establish a division process tailored to your and your spouse’s unique situation. However, it’s important that the division is fair.

3. Provide details of joint debts

Joint debts are those you’re both responsible for. These debts can include co-signed loans, mortgages, and joint credit cards.

Your prenup should outline how these debts will be divided if you separate. You may wish to divide them equally, where you’re both 50% responsible. Alternatively, you can decide how to divide debts in a way you both agree is acceptable.

Any debt solely in your name or your fiance’s will stay that way and be your responsibility following any divorce or separation.

4. List any children

Next, include the names of any children belonging to you or your fiance. They can be children you have together or children from previous relationships.

Including your and your spouse’s children in your prenup is essential. Children have rights that may impact the prenup. For example, if you have a child from a previous marriage, their inheritance may change what your spouse gets if you pass away.

LawDepot’s template does not include child custody, visitation, or maintenance terms. If you and your fiance separate, your prenup states that the courts will determine these terms under the Family Law Act.

5. Define any spousal support

Spousal support, also known as maintenance or alimony, is the money one spouse provides the other if you separate or divorce. Your prenup can determine a guideline for spousal support you choose together as a couple. Alternatively, you can let the court determine support if you separate.

In Australia, spousal support is determined by the courts on a case-by-case basis. Australian courts follow the Family Law Act Part VIII Section 75 to decide on support.

6. Include the surviving spouse’s inheritance

Finally, include details on what inheritance the surviving spouse will receive when one of you passes away. You don’t have to place any restrictions on what you inherit from each other’s estates. However, you may choose that you and your spouse only inherit according to each other’s Last Will and Testament. This is a common choice when you have children from previous relationships who will also inherit from you.

In addition to inheriting from your Last Will, you can specify in your prenup any other rights the surviving spouse may have, such as entitlement to superannuation death benefits or insurance policies.

It’s critical to be consistent in drafting your estate planning documents and your prenup so they align with your and your fiance’s choices for the future. This can make the execution of an estate a smoother process for the surviving spouse as the court may uphold the prenup’s contents if it contradicts the deceased’s Last Will.

Are Prenuptial Agreements legally binding in Australia?

Yes, Prenuptial Agreements are legally binding in Australia. Like any other contract, a prenup must:

Be signed and dated by both parties
Be properly witnessed
Include legally enforceable terms
Disclose all assets and liabilities
Be signed with no undue influence

The Family Law Act Part VIIIA includes additional requirements for a prenup. First, you and your fiance must each seek independent legal advice before signing your Prenup. Once you each receive independent advice, you must obtain certificates of independent legal advice.

Your certificates are then exchanged and added to your agreement so you can sign and date your document. Following these steps your document will be legally binding until you and your spouse terminate it or the court terminates the agreement or sets it aside for any legal reasons.

Our template includes certificates of independent legal advice that your solicitor and your fiance’s solicitor can each complete once you and your fiance have each received your advice.

Can a Prenuptial Agreement be made after a marriage?

Can you modify or terminate a Prenuptial Agreement?

Yes, you can modify or terminate a Prenuptial Agreement. You and your fiance can mutually agree to terminate the prenup and make a written termination agreement to that effect. You and your spouse must seek independent legal advice and receive certificates of independent legal advice to create a binding termination agreement.

You can also terminate your current prenup by creating a new Prenuptial Agreement or a postnuptial agreement that states that any existing agreements are terminated.

If you and your spouse are not in agreement about termination, you can ask the court to set the agreement aside. The Family Law Act (Section 90K) allows an agreement to be cancelled if one spouse disagrees with the contract. However, you must have a valid reason for the court to void your prenup, such as one of the following:

The agreement was obtained by fraud
A party failed to disclose assets and property
One spouse entered the agreement to defraud the other
Circumstances have changed that make the agreement, or parts of the agreement, impractical to carry out (not just inconvenient)
Material changes in circumstances have occurred regarding a child’s care that could create hardship for the party caring for that child

If you would like to modify your prenup, it’s recommended that you terminate the existing agreement and create a new prenup or a postnuptial agreement. If you need to terminate a prenup, it is strongly recommended that you seek legal guidance to begin the process.

Does a Prenuptial Agreement need to be witnessed or notarized?

Can I make a Prenuptial Agreement without a lawyer?

You can certainly make a Prenuptial Agreement without a lawyer. However, signing and executing one without a lawyer is not advisable. When you use our template, we outline that for your contract to be binding, both parties must complete the following:

Receive independent legal advice
Sign, preferably, in front of their lawyers
Attach a certificate of independent legal advice to the agreement and provide the other party with a copy of their certificate (a certificate is attached at the end of our prenup template)

So, although you can create a prenup without a lawyer's assistance, you can only properly execute one with independent legal assistance.

Free Prenuptial Agreement

Create Your Free Prenuptial Agreement

Prenuptial Agreement

Location

Location

Your Prenuptial Agreement

What is a Prenuptial Agreement?

What does a Prenuptial Agreement do?

Benefits of a Prenuptial Agreement

Who should sign a prenup?

How to write a Prenuptial Agreement

Are Prenuptial Agreements legally binding in Australia?

Can a Prenuptial Agreement be made after a marriage?

Can you modify or terminate a Prenuptial Agreement?

Does a Prenuptial Agreement need to be witnessed or notarized?

Can I make a Prenuptial Agreement without a lawyer?

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