Introduction
Prenups in Australia are legally recognised as Binding Financial Agreements under the Family Law Act. When properly prepared they remove the court power to alter property interests. However courts can set aside prenups in limited circumstances. Understanding when and why this occurs is essential for anyone relying on an agreement for asset protection.
This guide explains when Australian courts set aside prenups in 2026 and how couples can reduce that risk.
For the main prenup overview see
https://www.adamsunited.com.au/prenup-australia-fixed-fee/
The court power to set aside a prenup
Australian courts do not lightly interfere with Binding Financial Agreements. Because these agreements restrict judicial discretion courts only intervene when serious legal or procedural defects exist.
The Federal Circuit and Family Court of Australia has authority to set aside a prenup where statutory grounds are established.
Court information
https://www.fcfcoa.gov.au
Lack of independent legal advice
Independent legal advice is mandatory. A prenup may be set aside if
• one party did not receive advice
• advice certificates are missing or defective
• advice was rushed or unclear
• the legal effect was not properly explained
This is one of the most common reasons agreements fail.
Independent legal advice guidance
https://www.adamsunited.com.au/independent-legal-advice/
Non disclosure or incomplete disclosure
Full and frank disclosure is fundamental. Courts may set aside a prenup where
• assets were hidden
• liabilities were omitted
• superannuation was not disclosed
• business interests were understated
• valuations were inaccurate
Disclosure failures undermine informed consent.
Duress undue influence or pressure
Courts closely examine the circumstances surrounding signing. Prenups may be set aside if one party signed due to
• pressure close to a wedding
• emotional leverage
• financial dependency
• time constraints
• fear of relationship breakdown
The presence of pressure can invalidate consent.
Unconscionable conduct
Unconscionable conduct occurs where one party exploits a disadvantage of the other. This may include
• significant power imbalance
• lack of understanding
• language barriers
• emotional vulnerability
• financial dependence
Courts will intervene where exploitation is proven.
Unfairness at the time of signing
Courts assess fairness at the time the agreement was made. An agreement may be set aside if it was
• significantly one sided
• not reasonably explained
• entered without genuine negotiation
• inconsistent with contributions at that time
Later changes in circumstances alone are not enough.
Impracticability
A prenup may be set aside if it becomes impracticable to carry out. This is rare but may occur where
• the agreement cannot operate as written
• circumstances make performance impossible
• essential assumptions no longer exist
Impracticability is assessed narrowly.
Fraud or misrepresentation
If a prenup was obtained through fraud or misleading conduct it may be set aside. This includes
• false statements about assets
• misleading valuations
• concealment of key information
• dishonest inducements
Courts do not tolerate agreements founded on dishonesty.
Drafting errors and invalid clauses
Poor drafting can also lead to a prenup being set aside. Common issues include
• incorrect legislative references
• unenforceable clauses
• ambiguity
• contradictions
• failure to comply with statutory requirements
Precision in drafting is essential.
Legislation reference
https://www.legislation.gov.au/Series/C2004A01050
How to reduce the risk of a prenup being set aside
The strongest agreements share common features
1 full disclosure
2 independent legal advice for both parties
3 adequate time for negotiation
4 clear and fair drafting
5 proper execution
6 accurate record keeping
When the process is correct courts respect the agreement.
For compliant agreements
https://www.adamsunited.com.au/binding-financial-agreements-prenups/
Why professional preparation matters
Most prenups set aside by courts fail due to process errors not because prenups are ineffective. Professional preparation ensures compliance reduces risk and protects the integrity of the agreement.
Binding Financial Agreements Adams United Lawyers
We provide
• professionally drafted prenups
• independent legal advice
• disclosure guidance
• fixed fee certainty
• nationwide service
• enforceable agreements
FAQ When Prenups Are Set Aside by Australian Courts
Why do Australian courts set aside prenups
Courts set aside prenups when serious issues exist such as lack of proper legal advice incomplete disclosure pressure at signing unfairness at the time of signing or drafting problems that make the agreement invalid.
Can a prenup be overturned because someone was pressured to sign
Yes. If a partner signed under pressure emotional strain or limited time the court may decide the consent was not genuine and set the agreement aside.
Can failure to disclose assets make a prenup invalid
Yes. If assets liabilities superannuation or business interests were not fully disclosed the agreement may be set aside because one partner did not have informed understanding.
Will a court set aside a prenup that is unfair
A court may set aside a prenup if it was significantly unfair at the time of signing especially if one partner had less bargaining power or did not understand the financial effect.
Can a prenup be invalid because of drafting errors
Yes. Incorrect language unclear clauses or failure to meet legislative requirements can make the agreement unenforceable.
How can couples reduce the risk of a prenup being set aside
Couples can reduce risk by ensuring full disclosure proper independent legal advice sufficient time for negotiation fair terms at the time of signing and accurate professional drafting under the Family Law Act.
Contact us
https://www.adamsunited.com.au/contact-us/
Main website
https://www.adamsunited.com.au/
