Why Online Templates and Self-Drafted Agreements Are Set Aside Under the Family Law Act
Introduction
Australia has one of the strictest legal frameworks in the world for prenuptial agreements. A prenup, formally as a Binding Financial Agreement (BFA)—must comply with the Family Law Act 1975 (Cth) and follow a very specific process to be enforceable.
DIY prenups, template downloads and “online agreements” almost always fail because they do not satisfy the mandatory requirements. When challenged, the Federal Circuit and Family Court of Australia routinely sets them aside.
For a full prenup overview:
https://www.adamsunited.com.au/prenup-australia-fixed-fee/
Why DIY Prenups Fail – The Key Legal Reasons
1. No Independent Legal Advice (Mandatory Requirement)
Under the Family Law Act, a prenup is only binding if each party receives independent legal advice from their own lawyer.
DIY prenups fail because:
• no advice was given
• both parties used the same solicitor
• advice was verbal only
• certificates were not issued
• the advice was not compliant with the Act
Without proper advice and certificates, the agreement is not enforceable.
Learn more:
https://www.adamsunited.com.au/independent-legal-advice/
2. Incomplete or Incorrect Disclosure
Full financial disclosure is essential for a BFA.
DIY agreements often collapse because they leave out:
• super balances
• liabilities
• business interests
• trust structures
• property valuations
• bank statements
• historical data
If disclosure is incomplete, the agreement is vulnerable to future challenge—and often void.
3. Incorrect Drafting and Wrong Legislative References
The drafting requirements for BFAs are technical. DIY templates frequently:
• use American or UK phrasing
• cite the wrong sections of the Act
• contain clauses that contradict Australian law
• use outdated terminology
• include content that is not legally binding
Courts do not “fix” defective documents; they set them aside.
See the correct legal framework here:
https://www.legislation.gov.au/Series/C2004A01050
4. Unfairness or Imbalance at Time of Signing
Courts look at fairness when the agreement was made, not years later.
DIY prenups often display:
• large power imbalances
• one partner drafting the document without negotiation
• terms that heavily favour one party
• no opportunity for amendments
• no proper explanation of legal effect
Fairness is a core factor in assessing enforceability.
5. Signing Under Pressure, Duress or Time Constraints
A prenup can be invalid if signed:
• days before the wedding
• during pregnancy
• during relocation
• under emotional pressure
• without time to seek advice
• with rushed or incomplete review
DIY agreements are notorious for being signed in stressful or rushed situations—creating grounds for challenge.
See court guidance:
https://www.fcfcoa.gov.au
6. Unenforceable Clauses Inside the Agreement
DIY templates often contain clauses that are not legally enforceable in Australia, including attempts to:
• fix future child support
• predetermine parenting arrangements
• override parental responsibilities
• restrict access to future court applications
• lock in unequal financial outcomes
These weaken the entire agreement and sometimes invalidate it.
7. Using Outdated, Downloaded or Non-Australian Templates
Most DIY documents are:
• overseas templates
• American “prenup kits”
• UK sample agreements
• outdated Australian downloads
• generic relationship contracts
• agreements with the wrong legal format
These documents are not BFAs, even if labelled as such.
For compliant BFA guidance:
https://www.adamsunited.com.au/binding-financial-agreements-prenups/
8. Poor Storage, Missing Files or No Certificates
Courts expect:
• the signed agreement
• both independent legal advice certificates
• supporting disclosure documents
DIY prenups often lack:
• signed pages
• correct certificates
• digital copies
• complete record-keeping
• contemporaneous evidence
Missing documents = unenforceable agreement.
2026 Court Trends: DIY Prenups Are Being Set Aside More Often
Across 2024–2026, Australian judicial trends show:
• increased scrutiny of agreements made close to a wedding
• stricter enforcement of disclosure rules
• zero tolerance for missing certificates
• strong preference for specialist-drafted BFAs
• greater awareness of power imbalance and bargaining pressure
Professionally drafted agreements are being upheld at far higher rates than DIY agreements.
How to Avoid the Risk
The strongest agreements follow the correct legal and procedural pathway:
- Full and frank disclosure
- Professionally drafted terms
- Clear financial structures
- Proper negotiation time
- Independent legal advice for both parties
- Correct certificates
- Clean execution and record-keeping
If you want your prenup to stand up in court, it must be drafted properly from the beginning.
Fixed-Fee Prenups | Adams United Lawyers
We provide:
• fixed-fee drafting
• full disclosure guidance
• independent legal advice
• nationwide service
• fast turnaround
• legally enforceable documents
• compliance with Family Law Act requirements
FAQ Why DIY Prenups Fail in Australia
Are DIY prenups legally binding in Australia
Most DIY prenups are not legally binding because Binding Financial Agreements must meet strict Family Law Act requirements including independent legal advice for each party and compliant legal advice certificates.
Why do online prenup templates fail in Australia
Online prenup templates often fail because they are not drafted in accordance with Australian law. They commonly use incorrect wording omit full financial disclosure and do not include a compliant independent legal advice process.
Can a court set aside a prenup in Australia
Yes. A court can set aside a prenup where there has been non disclosure duress undue influence unconscionable conduct defective drafting invalid advice certificates or significant unfairness at the time the agreement was signed.
Is independent legal advice required for a prenup in Australia
Yes. Independent legal advice for each party is mandatory for a Binding Financial Agreement to be enforceable. Without proper advice and certification the agreement is vulnerable to challenge.
How can a prenup be made enforceable in Australia
A prenup is most likely to be enforceable when there is full and frank financial disclosure correct drafting under the Family Law Act independent legal advice for both parties sufficient time for negotiation and proper execution of the agreement.
Are DIY prenups recommended in Australia
DIY prenups are not recommended because they rarely comply with legal requirements and frequently result in disputes that cost significantly more than obtaining a professionally drafted agreement.
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https://www.adamsunited.com.au/contact-us/
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https://www.adamsunited.com.au/
