Australia Prenuptial Agreement

Pre‑nuptial agreements, known as "binding financial agreements," became enforceable in Australia in 2000 with the enactment of the Family Law Amendment Act 2000.

The pressure to allow binding pre‑nuptial agreements resulted from the major societal changes that had occurred in Australia, as in England, during the prior 30 years, such as changing views about marriage, higher rates of marriage breakdown, falling marriage rates, increasing cohabitation in marriage-like relationships and higher rates of second and subsequent marriages. Those pressures had intensified as cohabiting couples in Australia were permitted greater freedom of contract than married couples: ‘This created the extraordinary anomaly that the rights of married couples with respect to self-regulation of their financial affairs were significantly less than those of cohabiting couples'. When he introduced the legislation the Attorney General of Australia stated: ‘The changes in this Bill will attempt to bring the Act into line with prevailing community attitudes and needs'.

Part VIIIA of the Family Law Act 1986 requires that the parties secure independent legal advice and permits courts to refuse to enforce agreements on the grounds of fraud, duress, mistake, undue influence or unconscionability, as well as if it is impracticable for all or part of the agreement to be carried out, or if there has been a material change in the care of a child leading to hardship.

In 2004 the Family Law Council, an Australian governmental agency, reported that the rules are working well, allow people greater control and choice over their own affairs in the event of marital breakdown and contain appropriate checks and balances.

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