What a financial agreement does
A binding financial agreement allows a couple to contract out of the court's property jurisdiction and decide for themselves how assets will be divided. Where one is valid and binding, the court cannot make property orders inconsistent with it.
That is a significant power, which is why the formal requirements are strict. Unlike consent orders, a financial agreement is never assessed by a court for fairness. It can be one-sided and still be binding.
When they are used
| Timing | Commonly called | Typical purpose |
|---|---|---|
| Before marriage or cohabitation | Prenuptial / cohabitation agreement | Protecting pre-existing assets, a business, or children's inheritance |
| During the relationship | Postnuptial agreement | Recording a change, an inheritance, or a restructure |
| After separation | Separation agreement | Documenting a settlement without a court order |
They are most valuable where one party brings substantially more into the relationship, where there are children from a previous relationship whose inheritance needs protecting, where a family business or farm should stay in the family, or in a second relationship later in life.
The formal requirements
Both parties need independent legal advice
Before signing, each party must receive independent legal advice about the effect of the agreement on their rights, and about its advantages and disadvantages. Each lawyer must then sign a statement confirming that advice was given, and each party must receive a copy of that statement.
Independent means genuinely separate lawyers — not two lawyers from the same firm, and not one lawyer advising both. This is where agreements most often fail.
The requirement is not a formality to be processed. A lawyer asked to sign a statement for a party who has been given no time, no disclosure and no real opportunity to reconsider is being asked to create a document that may not survive.
When agreements fail
The court can set aside a financial agreement on defined grounds, and does. The common ones:
- The formal requirements were not met
- The agreement was obtained by fraud, including non-disclosure
- It is void, voidable or unenforceable at general law
- Circumstances have made it impracticable to carry out
- A material change relating to a child causes hardship
- Unconscionable conduct in the making of it
- Duress, undue influence or unconscionability
Timing and pressure are the recurring theme. An agreement presented days before a wedding, to a party with no realistic ability to walk away, is the classic set-aside case. If you want an agreement to hold, start months in advance, disclose fully, and give the other party genuine time and independent advice.
Agreement or consent orders?
After separation, both routes are available and they are genuinely different.
Consent orders
Approved by the court, which must be satisfied the outcome is just and equitable. Enforceable as orders. Cheaper, and much harder to unwind.
Financial agreement
A private contract with no court approval and no fairness assessment. More flexible, more expensive, and more vulnerable to being set aside.
We will tell you which fits. For a straightforward separation, consent orders are usually the better instrument, and we say so even though the agreement is the larger job.
What it costs
- Fixed fee to draft an agreement
- Fixed fee to advise and certify for a receiving party
- Each party must pay their own lawyer
- Consent orders usually cost less
- Set-aside applications quoted separately
- Honest advice on which instrument fits
Frequently asked questions
Yes, as binding financial agreements under the Family Law Act 1975 (Cth), provided the strict formal requirements are met. Each party must receive independent legal advice about the effect of the agreement and its advantages and disadvantages, and each lawyer must sign a statement confirming that advice was given.
Yes, on defined grounds including failure to meet the formal requirements, fraud including non-disclosure, duress or undue influence, unconscionable conduct, circumstances making it impracticable to carry out, and material changes relating to a child causing hardship. Agreements signed under time pressure shortly before a wedding are the classic set-aside case.
No. Unlike consent orders, where the court must be satisfied the outcome is just and equitable, a financial agreement is never assessed by a court for fairness. It can be substantially one-sided and still be binding, which is precisely why independent legal advice for both parties is mandatory.
No. Each party must receive genuinely independent legal advice, which means separate lawyers — not two lawyers from the same firm and not one lawyer advising both. Failure on this point is one of the most common reasons agreements are set aside.
For most separating couples, consent orders are the better instrument: they are approved by the court, enforceable as orders, generally cheaper and much harder to unwind. Financial agreements suit situations where privacy matters, or where the parties want terms a court might not approve.
More information
Wanting to protect your assets in the event that your relationship fails? We can assist.
Financial agreements lawyers Rockhampton
Financial Agreements (sometimes referred to as “pre nuptial agreements”) are private agreements that do not need the review of the Court. These agreements deal with how a couple intends to divide their property and superannuation in the event of separation or after separation has occurred. They can also include any agreement reached regarding spouse maintenance.
Financial agreements are regularly associated with the rich and famous. However, they can be a very practical step to protect the assets of the parties’ entering a marriage or a de facto relationship, in the event of a relationship breakdown.
A Financial Agreement can be entered into:
- Before marriage or before living together;
- During marriage or during a de facto relationship;
- After separation; or
- After divorce.
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Financial agreements are very complex legal documents and can only be completed with lawyer involvement, as each party’s lawyer must sign a statement confirming the required independent legal advice was given.
When a Financial Agreement is drafted and entered into correctly, it will be considered binding and the setting aside of such an agreement can be a difficult and usually expensive process.
We can provide you with advice about whether a Financial Agreement may be appropriate in your circumstances and assist you to ensure your agreement is properly documented to minimise the risk of a dispute if separation occurs.
We recommend you contact our family lawyers Rockhampton to get an understanding of your potential obligations or entitlements of a financial agreement.
We can also assist with:
- Divorce
- Property Settlements for both married and de facto couples
- Property disputes involving parents and adult children
- Spouse maintenance
- Parenting arrangements
- Child support and Adult Child Maintenance
- Personal protection issues involving domestic violence
- Mediation
- Surrogacy agreements
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This page is general information about the law as it applies in Queensland, current as at 2026. It is not legal advice and does not take your circumstances into account. Figures set by regulation are indexed and change. Speak to one of our lawyers before acting.