Key Takeaways
- Financial agreements allow couples to decide how assets, debts, superannuation and financial resources will be divided if they separate.
- These agreements can be made before, during, or after a marriage or de facto relationship.
- To be legally binding in NSW, strict requirements must be met, including independent legal advice for both parties.
- Financial agreements can reduce conflict, provide certainty and protect assets such as businesses, inheritances or family wealth.
- Professional legal guidance is essential to ensure the agreement is valid and enforceable.
What Is a Financial Agreement?
A financial agreement is a legally recognised contract under the Family Law Act 1975 that sets out how property, finances, superannuation and sometimes spousal maintenance will be handled if a relationship ends.
They are commonly known as:
- Pre-nuptial agreements – made before marriage or a de facto relationship
- Post-nuptial agreements – made during the relationship
- Separation financial agreements – made after separation
For couples across Newcastle, Lake Macquarie and the Hunter region, financial agreements provide a proactive way to manage financial risk and avoid lengthy court disputes later.
Why Consider a Pre-nup or Post-nup?
Many people assume financial agreements are only for the very wealthy. In reality, they are useful in a wide range of situations, including:
- Protecting assets owned before the relationship
- Safeguarding inheritances or family gifts
- Preserving interests in a business
- Providing clarity where one partner has significantly greater assets
- Supporting blended families and children from previous relationships
By setting expectations early, couples often experience less conflict and uncertainty if separation occurs.
When Can Financial Agreements Be Made?
Financial agreements can be created at different stages of a relationship:
Before marriage or moving in together
This is the traditional pre-nup scenario. It records what each person brings into the relationship and how property will be divided if separation occurs.
During the relationship
Couples may choose a post-nup after purchasing property, starting a business or receiving an inheritance.
After separation
A financial agreement can finalise property division and spousal maintenance without going to court, similar to consent orders.
Each stage has different legal requirements, so tailored legal advice is critical.
Legal Requirements for a Binding Agreement
For a financial agreement to be valid and enforceable in NSW, several strict conditions must be met:
- The agreement must be in writing and signed by both parties.
- Each party must receive independent legal advice about their rights and the effect of the agreement.
- Lawyers must provide a signed certificate of advice.
- The agreement must not involve fraud, duress, unconscionable conduct or significant non-disclosure.
If these requirements are not followed precisely, the agreement may be set aside by the court.
Advantages of Financial Agreements
Certainty and control
Couples decide outcomes themselves rather than leaving decisions to a court.
Reduced legal costs
Resolving property division in advance can avoid expensive litigation.
Privacy
Financial agreements remain private, unlike court proceedings.
Asset protection
They can protect family businesses, trusts, inheritances and pre-existing wealth.
For many couples, this provides valuable peace of mind.
Can a Financial Agreement Be Challenged?
Yes. Courts can set aside financial agreements in certain circumstances, including:
- Fraud or non-disclosure of assets
- Pressure or duress when signing
- Significant changes affecting children or hardship
- Agreements that are impractical or unfair to enforce
Because of this, careful drafting by an experienced family lawyer is essential.
Financial Agreements vs Consent Orders
Both options can formalise property division, but they differ:
- Financial agreements are private contracts and offer flexibility.
- Consent orders are approved by the court and may provide stronger protection from later challenges.
The best option depends on your personal and financial circumstances.
How Berryman Partners Can Help
Creating a valid financial agreement requires careful legal drafting and strategic advice. At Berryman Partners, we help clients across Newcastle, Lake Macquarie and the Hunter region:
- Understand whether a financial agreement is appropriate
- Draft clear, enforceable agreements tailored to their situation
- Protect businesses, inheritances and complex asset structures
- Ensure full compliance with NSW and federal family law requirements
Our goal is to provide certainty, protection and peace of mind for your future.
Contact Berryman Partners today to discuss whether a pre-nup or post-nup is right for you.
This blog was written by Senior Associate,
Liz McIntyre
Liz practises in the areas of Family Law, Wills & Estate Planning,
Deceased Estates, Wills disputes and Conveyancing
