Introduction
Prenuptial agreements are regularly tested in Australian courts. When properly prepared as Binding Financial Agreements under the Family Law Act 1975 they are upheld and enforced. When the legal process is flawed courts set them aside.
This article explains how Australian courts assess prenups in 2026 what judges look for and why professionally prepared agreements succeed where informal or rushed agreements fail.
For a complete overview of prenups in Australia see
https://www.adamsunited.com.au/prenup-australia-fixed-fee/
How Australian courts assess prenups
Courts do not examine prenups casually. A Binding Financial Agreement removes the courts usual power to alter property interests. Because of this judges examine the process closely.
The court considers
• whether the agreement complies with the Family Law Act
• whether each party received independent legal advice
• whether disclosure was full and frank
• whether the agreement was entered freely
• whether the agreement was fair at the time it was signed
If these factors are satisfied courts generally uphold the agreement.
Court information
https://www.fcfcoa.gov.au
Independent legal advice is critical
Independent legal advice is mandatory. Courts will not overlook defects in this step.
Each party must have received advice about
• the effect of the agreement
• their rights under the Family Law Act
• the advantages and disadvantages of signing
Certificates of advice must exist and be compliant. If advice was rushed unclear or missing courts are likely to set the agreement aside.
Independent legal advice information
https://www.adamsunited.com.au/independent-legal-advice/
Disclosure determines enforceability
Full disclosure is one of the most common points of challenge.
Courts expect disclosure of
• property
• liabilities
• superannuation
• business interests
• trusts
• financial resources
Incomplete disclosure undermines the integrity of the agreement and is a common reason agreements fail in court.
Timing and pressure are closely examined
Courts look carefully at when the agreement was signed.
Agreements signed shortly before a wedding or during stressful life events are scrutinised more closely. The court assesses whether both parties had genuine time to consider the agreement and obtain advice.
Agreements signed under pressure are vulnerable to challenge even if the document itself appears compliant.
Fairness at the time of signing matters
Courts do not reassess fairness years later. They examine fairness at the time the agreement was made.
If an agreement was significantly one sided without justification or explanation courts may consider whether there was unconscionable conduct or inequality of bargaining power.
Proper drafting and negotiation reduce this risk.
What courts will not enforce
Courts will not enforce clauses that attempt to
• determine parenting arrangements
• fix future child support
• override parental responsibilities
• restrict access to the court
Including unenforceable clauses weakens the agreement and creates unnecessary risk.
Recent court trends in 2026
Australian courts are increasingly consistent in their approach.
Current trends show
• strong enforcement of properly prepared agreements
• strict adherence to disclosure requirements
• zero tolerance for missing advice certificates
• close examination of pressure and timing
• higher invalidation rates for informal agreements
Professionally drafted agreements are upheld far more often than self prepared agreements.
How to maximise enforceability
To maximise the likelihood that a prenup will hold up in court
1 ensure full disclosure
2 obtain independent legal advice for both parties
3 allow sufficient time for negotiation
4 ensure fairness at the time of signing
5 use correct drafting under the Family Law Act
6 retain complete records
For professional assistance see
https://www.adamsunited.com.au/binding-financial-agreements-prenups/
Why professional drafting matters
A properly prepared prenup provides
• certainty
• asset protection
• reduced litigation risk
• clarity for both parties
• long term enforceability
When done correctly courts respect and enforce these agreements.
Binding Financial Agreements Adams United Lawyers
We provide
• professionally drafted Binding Financial Agreements
• independent legal advice
• full disclosure guidance
• nationwide service
• fixed fee certainty
• legally compliant agreements
FAQ How Prenups Hold Up in Court in Australia
Are prenups enforced by courts in Australia
Yes. Courts enforce prenups when they meet the requirements of the Family Law Act and when each party received proper independent legal advice full disclosure was provided and the agreement was entered freely and without pressure.
What makes a prenup fail in court in Australia
Prenups fail when there is incomplete disclosure lack of independent legal advice pressure or stress at the time of signing unfairness at the time the agreement was made or defective drafting that does not comply with the Family Law Act.
Do courts look at fairness when reviewing a prenup
Yes. Courts examine fairness at the time the agreement was signed. They do not reassess fairness years later unless there are concerns relating to unconscionable conduct or circumstances that make the agreement impracticable.
Can a prenup be challenged years after it was signed
Yes. A prenup can be challenged at any time. Agreements that were prepared with full disclosure compliant drafting independent legal advice and proper signing processes are far more likely to withstand a challenge.
Is a prenup stronger than a court order
A prenup can override the usual court power to adjust property interests when it is valid and compliant. Court orders depend on judicial discretion while Binding Financial Agreements provide certainty when they meet all requirements.
What increases the chance that a prenup will hold up in court
Full and frank disclosure correct drafting under the Family Law Act independent legal advice for each party genuine negotiation time and clear evidence of free and informed agreement all increase enforceability.
Contact us
https://www.adamsunited.com.au/contact-us/
Main website
https://www.adamsunited.com.au/
