The Legalities of Prenuptial Agreements

No one goes into a marriage expecting it to fail but it is important to protect yourself and the assets that you’re bringing into the relationship prior to saying “I do”. A prenuptial agreement is a legally binding agreement that outlines what happens to any assets, property, and money that each person brings into the marriage. Along with protecting yourself, a prenup can protect children from previous relationships, your business, or other members of your family.

Recognition of Prenuptials

A prenuptial is a legally binding financial agreement made between a couple prior to or after their wedding date. The use of prenuptials is allowed under the Family Law Act of 1975 and is recognised for married couples. Cohabitation agreements and de facto relationship agreements are also recognised as legally binding.


Prenuptial agreements in Adelaide outline what is to happen to the property and assets of both parties if there is a breakdown of their marriage. It dictates what is to happen to what they brought into the marriage and the assets that are gained during the marriage. The agreements may also outline spousal maintenance either during the marriage, after a divorce, or both.

Since blended families are increasingly common, a prenuptial may also deal with the discrepancies between the spouses’ wealth and any inheritances that the couple wants for children whom they bring into the marriage or those they may have together. By taking time to outline these details, the document can protect assets inherited by families and the futures of the children involved in the relationship.

Challenging Prenuptial Agreements

Although prenups are usually followed because they are legally binding agreements, there are circumstances by which they can be legally set aside. These circumstances include:

  • Committing fraud to obtain agreement, such as not disclosing debts or businesses.
  • Entering into an agreement so that one of the parties could defraud or block creditors.
  • Agreeing to the prenuptial to defraud someone with whom one party was in a common-law relationship.
  • “Recklessly disregarding” a creditor’s rights.
  • Changingthe relationship to make the agreement impractical.
  • Changingthe relationship in ways that will affect the care of children, especially if it presents a hardship for their legal caretaker.

It is important to update or rewrite a prenup if circumstances do change. While the basics of the agreement usually stay the same, provisions should be made for children born into the relationship. An attorney who specialises in family law can help write a prenuptial agreement and make all necessary updates if circumstances change.

For the most part, a prenup is an agreement that protects what you bring into a marriage such as wealth, property, a business, or children from another relationship. If the marriage does break up, it can make settling a divorce much easier to do.

However, the couple will still need to decide what to do about assets or property gained within their time together. Some people find it difficult to bring up prenuptial agreements with soon-to-be spouses, but it is important to be prepared if the marriage does break up.

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