A couple walks in with the agreement already written. They’ve talked it through, they’re on the same page, and they want a lawyer to make it official. The problem is that one lawyer can’t do that. Not legally. Not in a way that will hold up.
That surprises a lot of people, and it matters more than they realise.
The requirement for a binding financial agreement in Australia isn’t just that the document exists. It’s that each of you receives independent legal advice from your own separate lawyer, before you sign. A single lawyer acting for both of you doesn’t satisfy that requirement, regardless of how fair the terms are or how much you both agree.
Think about what’s actually being signed away. You might be giving up your right to a property settlement if things end. Or locking in what you’d receive from a partner’s business or superannuation. That’s a significant decision, and the law takes the view that you shouldn’t make it without someone in your corner.
What most people don’t realise is that “getting legal advice” and “having a binding agreement” are not the same thing. The first is easy to arrange. The second has specific requirements that, if missed, can make the whole document unenforceable when you need it most.
By the end of this article, you’ll understand exactly what’s required, what goes wrong when people try to shortcut it, and what a sensible process looks like from start to finish.
Key Takeaways
- Both of you need separate lawyers: A binding financial agreement requires each party to receive independent legal advice from their own lawyer, not a shared one.
- The lawyer must sign a certificate: It’s not enough to have a conversation. Each lawyer must sign a formal certificate confirming the advice was given before you sign the agreement.
- One lawyer cannot act for both of you: Even at the same firm, the same lawyer advising both parties creates a conflict of interest and will not produce a binding agreement.
- Skipping advice can invalidate the whole document: An agreement where one or both parties didn’t receive proper independent legal advice can be set aside by a court.
- This applies whether you’re married or de facto: The requirement is the same for both.
- You can still make a financial agreement after separation: The rules apply at any stage, before marriage, during the relationship, or after separation.
What is a prenup actually called under Australian law?
The word “prenup” isn’t a legal term in Australia. What most people mean by a prenup is a binding financial agreement, made under the Family Law Act 1975. Depending on when it’s made, it falls under different sections of that Act, but the underlying requirements are the same.
You can make a financial agreement before you marry or register a de facto relationship, during the relationship, or after separation. The term “prenup” tends to refer to agreements made before or at the start of a relationship, but the legal framework covers all of them.
A financial agreement is different from consent orders. Consent orders are approved by the Federal Circuit and Family Court of Australia and carry the court’s endorsement. A financial agreement is a private contract between you and your partner, and it becomes binding when the legal requirements are met, without any court filing or approval required. That’s both its strength and its vulnerability.
If one of those requirements is missed, there is no court that signed off on it to fall back on.
Key Point: The term “prenup” is shorthand. The document you’re making is a binding financial agreement under federal law, and the rules apply whether you’re about to marry, already married, in a de facto relationship, or already separated.
Why does each of you need independent legal advice for a financial agreement?
The short answer is that the law requires it. But understanding why helps you see why the requirement is so strictly enforced.
A financial agreement often asks one or both parties to give up significant legal rights. The right to seek a property settlement. The right to claim spousal maintenance. In some cases, the right to a share of superannuation built up during the relationship. These aren’t small concessions.
Independent legal advice is the mechanism that protects the agreement from being challenged later on the basis that one party didn’t understand what they were signing, or felt pressured into it. If your lawyer has advised you of your rights, explained the effect of the agreement and noted its advantages and disadvantages, and signed a certificate saying so, it becomes very difficult to walk into a court years later and say you didn’t know what you were agreeing to.
That’s the protection the requirement provides, for you and for the agreement itself.
The advice must specifically cover the effect of the agreement on your rights, and the advantages and disadvantages of making it. It’s not a rubber stamp. Your lawyer needs to actually engage with your circumstances, and you need to actually engage with what they’re telling you.
Expert Tip: If your lawyer is signing a certificate of independent legal advice in under fifteen minutes, ask yourself whether the advice was real. A proper session covers your specific assets, your rights without the agreement, and what you’re giving up. That takes time.
Can we use the same lawyer for our prenup or financial agreement?
No. One lawyer cannot act for both of you, and this is one of the most common misconceptions we see.
Even if the lawyer is perfectly fair, perfectly competent, and both of you trust them completely, the structure of a financial agreement makes it impossible for a single lawyer to act for both parties. Their duty of disclosure and their duty to act in each client’s best interests are in direct conflict the moment the interests of two clients diverge, and in a financial agreement, they almost always do at some point.
The same lawyer at the same firm cannot represent both of you. That’s a conflict of interest that no amount of goodwill or transparency fixes.
What some people ask is whether two lawyers from the same firm can act for each party separately. In theory this is possible if appropriate information barriers exist, but in practice most reputable firms won’t do it. The optics and the risk aren’t worth it. The cleaner approach, and the one that best protects both of you, is for each party to instruct a separate lawyer at a separate firm.
Can you save money by sharing a lawyer? Not legally, not for a binding financial agreement. There’s no shortcut here. But there are ways to keep the overall cost proportionate, which we’ll come to.
Key Point: “Our family lawyer can just do the paperwork for both of us” is one of the most expensive misconceptions in family law. The agreement won’t be binding, and you won’t find out until it’s too late.
Will the financial agreement be valid if one of us doesn’t get a lawyer?
No. An agreement where one party did not receive independent legal advice from their own lawyer, before signing, is not a binding financial agreement under the Family Law Act.
The certificate of independent legal advice is a formal requirement. Each lawyer must sign a certificate confirming that they provided that advice before the agreement was executed. Without two certificates, one for each party, the agreement fails the statutory requirements.
It won’t fail quietly either. If you separate and the other party applies to a court for a property settlement, an agreement that lacks the proper certificates can be set aside entirely. That means the court treats it as if it never existed, and you’re back to the starting point on dividing assets.
There are other grounds on which a financial agreement can be challenged, including fraud, duress, and material non-disclosure of assets, but missing or inadequate legal advice is the most common reason agreements fail. It’s also the most preventable.
Expert Tip: A signed document with both names on it is not the same as a binding financial agreement. The certificate from each lawyer is what makes it enforceable.
What does a financial agreement actually cover in a separation?
A financial agreement can deal with how property is divided if the relationship ends, how superannuation is treated, and whether either party can seek spousal maintenance from the other.
It cannot deal with parenting arrangements or child support. Those matters are governed separately, and no financial agreement can sign away a child’s right to support from a parent. If parenting arrangements and child support need to be worked out at the same time, those are separate conversations.
Within the area of property and finances, the agreement can be broad or narrow. Some couples use it to quarantine specific assets, for example a property or business owned before the relationship. Others use it to set out a full framework for how everything would be divided if they separated.
A well-drafted agreement will also deal with what happens to assets acquired during the relationship, and how superannuation accumulated over time is treated.
Key Point: A financial agreement is a powerful tool for property and finances. It doesn’t touch parenting or child support, which follow a different process entirely.
How does a financial agreement affect what I’m entitled to if we separate?
Without a financial agreement, the starting point if you separate is that either party can apply to the Federal Circuit and Family Court of Australia for a property settlement. The court considers a range of factors: what each person brought to the relationship, what each contributed during it, and what each person’s future needs look like.
A financial agreement changes that. It can define, in advance or at the point of separation, what each of you is entitled to receive, and it can remove the right to seek orders beyond what the agreement provides.
That’s a significant trade-off. If you signed an agreement that gives you a fixed share, you can’t come back later and argue that a full property settlement would have given you more, unless the agreement itself is set aside.
This is exactly why independent legal advice is so important. Your lawyer’s job is to tell you what you’d likely be entitled to without the agreement, so you can make an informed decision about whether the terms you’re being offered are fair.
If they are, great. If they’re not, you need to know that before you sign, not after.
Expert Tip: Ask your lawyer to walk you through what a property settlement might look like without the agreement. That comparison is the core of the advice they’re required to give you.
What does independent legal advice look like in practice?
In practical terms, you each instruct your own lawyer. They review the proposed agreement, consider your financial circumstances, and advise you specifically about what you’re agreeing to.
Your lawyer will want to understand what assets you each have, what you’d likely receive in a property settlement without the agreement, and whether the terms being proposed are reasonable in light of that. They’ll go through the agreement clause by clause, explain what each provision means, and give you their honest assessment of the advantages and disadvantages.
At the end of that process, if you’re satisfied with the terms, you sign the agreement in the presence of your lawyer. Your lawyer then signs and dates the certificate of independent legal advice. The same process happens on the other side, with the other party’s lawyer.
The agreement isn’t executed until both certificates are in place.
You don’t have to agree with your lawyer’s assessment, but you do need to receive it. If your lawyer advises you that the terms are unfavourable and you choose to proceed anyway, that’s your right. Your lawyer will note that in the certificate.
Key Point: The certificate isn’t a formality. It’s the legal record that advice was given, received, and understood. Courts look at it carefully if an agreement is ever challenged.
Does getting our own lawyers mean this will turn into a fight?
Not at all, and this is what people are most surprised to learn.
Having separate lawyers doesn’t mean the process becomes adversarial. Most financial agreements are negotiated and finalised cooperatively. Each lawyer acts in their own client’s interests, which is the point, but that doesn’t mean the conversations between the parties or their lawyers have to be hostile.
In practice, one party’s lawyer often drafts the agreement. The other party’s lawyer reviews it and raises any concerns. Those concerns might lead to revisions. Once both lawyers are satisfied that the agreement is fair and properly reflects what was discussed, both parties sign.
The tone of the process is largely set by the parties themselves. If you’ve already agreed on the terms, the legal process is really about making sure the document accurately records that agreement and that each of you understands what you’re signing. That’s a practical exercise, not a confrontational one.
The risk of conflict is much higher when one party feels they were rushed, pressured, or didn’t have a proper chance to get advice. Separate lawyers reduce that risk, they don’t create it.
Expert Tip: Tell your lawyer at the outset that you want a cooperative process. A good family lawyer can draft or review a financial agreement without turning it into a battle.
How long does it take to sort out a financial agreement?
If you’re making a prenup before marriage, and both parties are organised and in agreement on the terms, a straightforward financial agreement can be completed in four to eight weeks. That assumes lawyers are instructed promptly, both parties respond to requests for information, and there are no significant disputes about the terms.
If there are assets to disclose, valuations to obtain, or real disagreement about the terms, it takes longer.
If you’re already separated, the timeline depends on complexity. A simple agreement between two people who’ve reached agreement may take a similar period. Where the asset pool is large or the split is disputed, the timeline extends accordingly.
Don’t leave a prenup to the last few weeks before a wedding. Lawyers need time to do the work properly, and a rushed financial agreement is more likely to have errors that cause problems later.
Key Point: Starting early gives you time to negotiate, revise, and execute the agreement without pressure. Pressure is one of the grounds on which an agreement can later be challenged.
What will it cost if we each get our own lawyer for a financial agreement?
Legal fees for a financial agreement vary depending on the complexity of the asset pool, how much negotiation is involved, and how quickly both parties respond.
A straightforward agreement where the terms are largely agreed and the assets are simple typically costs less than one involving a business, significant superannuation, or contested terms. Each party pays their own lawyer separately.
We won’t give you a specific fee range here because it would be misleading without knowing your circumstances. What we can say is that the cost of a properly executed financial agreement is almost always less than the cost of litigating a property settlement without one. Ask each firm you speak to for a fee estimate based on your specific situation.
Ways to keep costs proportionate include coming to the initial consultation with a clear summary of your assets and what you’ve agreed on, being responsive to your lawyer’s requests, and minimising the rounds of revision by resolving as much as possible with your partner before lawyers are involved.
Expert Tip: Cost goes up when parties change their minds, delay responding, or ask for repeated rounds of revision. The clearer your instructions at the start, the more straightforward the process.
Can we still make a financial agreement if we’re already separated or divorced?
Yes. Financial agreements can be made before marriage, during a marriage or de facto relationship, or after separation. The same rules apply at every stage.
If you’re already separated, a financial agreement can be a practical way to settle property matters without going to court. It gives both of you certainty and avoids the time and cost of contested proceedings. Many couples who are separating on reasonable terms choose this path because it keeps them in control of the outcome rather than leaving it to a judge.
After divorce, there is a time limit on applying to the court for a property settlement: generally twelve months from the date the divorce order takes effect. A financial agreement made within that period is still valid. If you’re approaching that deadline, get advice promptly.
For de facto couples, the limitation period for property settlement applications is generally two years from the date of separation.
Key Point: If you’re separated and the terms are largely agreed, a financial agreement between lawyers is often faster and cheaper than court proceedings. Don’t assume court is the only path.
How does a financial agreement fit with parenting arrangements and child support?
A financial agreement deals with property and, where relevant, spousal maintenance. It does not govern parenting arrangements or child support.
Parenting arrangements, meaning where the children live and how much time they spend with each parent, are dealt with separately. You can formalise those through a parenting plan or consent orders. Child support is administered through Services Australia, or can be agreed privately, but it can’t be contracted out of through a financial agreement.
If you’re sorting out both property and parenting at the same time, each issue follows its own process. Completing a financial agreement doesn’t affect the parenting arrangement process, and vice versa. They can run in parallel.
Expert Tip: Don’t delay sorting out parenting arrangements while you wait for the financial agreement to finalise. Children need stability, and a parenting plan can be put in place quickly even while other matters are ongoing.
What happens if one of us regrets the agreement later and tries to challenge it?
A financial agreement can be set aside by a court in limited circumstances. Those circumstances include fraud, failure to disclose assets, duress or undue influence, a material change in circumstances that would cause hardship, and, most commonly, failure to comply with the formal requirements, including the independent legal advice requirement.
A properly executed agreement, where both parties received full advice, is much harder to challenge. A court won’t set aside an agreement simply because one party wishes they’d negotiated differently.
But if there was real pressure at signing, if one party’s assets were not fully disclosed, or if the advice given was inadequate, a court may be willing to look behind the agreement. That’s why a cheap or rushed sign-off on the certificate of advice is such a risk. A lawyer who signs a certificate without genuinely engaging with their client’s circumstances may have created a document that looks binding but isn’t.
Key Point: The strength of an agreement is only as good as the advice behind it. Cutting corners on legal advice doesn’t save money. It creates a document that might not hold when it matters.
What documents and information do you need before seeing a lawyer?
Before your initial appointment, gather the following. Your lawyer will need to understand the full picture before they can advise you.
A clear summary of your assets: property you own, superannuation balances, savings, investments, and any business interests. The same for any liabilities: mortgages, loans, credit cards. Details of any assets you owned before the relationship started, including any inheritances or gifts you’ve received. If the agreement involves property, recent valuations help.
For a prenup, you’ll also want a clear statement of what you and your partner have discussed and agreed on in terms of what should happen if you separate. Your lawyer’s job isn’t to negotiate the terms for you, it’s to make sure the document accurately records them and that you understand the consequences.
The more organised you are before the appointment, the more efficient and cost-effective the process will be.
Expert Tip: Bring a one-page summary of your key assets and the main terms you’ve agreed on. It focuses the conversation and reduces billable time spent on basics.
How do you choose the right lawyer for a financial agreement?
Look for a family lawyer with specific experience in drafting and advising on binding financial agreements. Not every family lawyer does this work regularly, and the technical requirements are specific enough that experience matters.
Ask about the lawyer’s familiarity with financial agreements at the first call. Ask how many they’ve worked on, whether they draft them or only review them, and what their usual process looks like. A lawyer who can explain the process clearly at the first meeting is usually a good sign.
On the Gold Coast and in Brisbane, you want someone who practises in family law specifically, not a general lawyer who occasionally handles family matters. The requirements for a valid financial agreement are technical, and the cost of getting them wrong is high.
It’s also worth asking whether the lawyer you’re speaking to can recommend someone suitable for your partner to see. A good referral keeps the process cooperative from the start.
If you’d like to speak with our team about a financial agreement, you’re welcome to book a confidential, no-obligation initial consultation with C + K Family Lawyers.
Key Point: Ask the lawyer how many financial agreements they handle each year. If the answer is vague or low, keep looking.
Is a financial agreement the best option, or are there other ways to protect your finances?
A financial agreement is one option. The other main option is consent orders, which are filed with and approved by the Federal Circuit and Family Court of Australia.
Consent orders carry the court’s endorsement and can be enforced directly through the court if breached. A financial agreement is a private contract and, while binding, requires a court application to enforce or set aside.
For some people, the court oversight of consent orders provides more comfort. For others, the privacy and speed of a financial agreement make it more attractive. For a prenup, made before the relationship ends, consent orders aren’t an option, so a financial agreement is the only path if you want a binding arrangement in advance.
The right choice depends on your circumstances, your relationship with your partner, and the nature of the assets involved. It’s worth discussing both options with your lawyer rather than assuming one is automatically better.
Expert Tip: If you’re separating and largely in agreement, ask your lawyer to compare the timeline and cost of a financial agreement versus consent orders in your specific situation. The answer may not be what you expect.
What happens if I’m worried about money and the kids tonight?
If you’re reading this late and you’re not sure what your situation means for your finances or your children, the most useful thing you can do is write down what you know.
What assets are in play. What’s been said. What you’re worried about. What’s been agreed, even informally.
That list becomes the starting point for a proper conversation with a lawyer. You don’t need to have everything sorted. You just need to know enough to have the first conversation.
You can also contact Services Australia if child support is the immediate concern. They can set up a basic child support arrangement relatively quickly.
If there’s family violence involved, the process changes. Safety comes first. Speak to a lawyer or contact 1800RESPECT if that’s your situation.
For everything else, the first step is the same: get advice from a family lawyer who knows what a financial agreement involves, what you’re entitled to without one, and what the practical options are for your circumstances.
Frequently asked questions
Can we draft the financial agreement ourselves and then just have lawyers sign off on it?
You can come to lawyers with heads-of-agreement or a summary of what you’ve discussed. But a binding financial agreement needs to be drafted in legal form, and each lawyer needs to review it and advise on it properly before signing the certificate. A document drafted by the parties and rubber-stamped by a lawyer who hasn’t genuinely engaged with it is a risk. If it’s ever challenged, that certificate may not hold.
What if one of us uses a cheap online service for our lawyer and the other uses a proper family lawyer?
The quality of the advice matters. A certificate signed by a lawyer who didn’t adequately engage with their client’s circumstances can be a ground for setting the agreement aside. If your partner’s lawyer didn’t genuinely advise them, the whole agreement is at risk, even if your advice was thorough. The strength of the agreement depends on both lawyers doing their job properly.
Does a financial agreement cover what happens to the house we buy together during the relationship?
Yes. A well-drafted financial agreement can address assets acquired during the relationship, not just assets brought into it. You can specify how jointly acquired property would be dealt with on separation, and how superannuation built up during the relationship is treated.
We’re de facto. Do the same rules apply to us?
Yes. De facto couples who have lived together for at least two years, or who have a child together, can make binding financial agreements under the same framework as married couples. The independent legal advice requirement is identical.
What if we can’t agree on the terms? Can we still use a financial agreement?
If you can’t reach agreement on terms, a financial agreement isn’t possible until you do. In that situation, mediation may help you reach a position where an agreement becomes possible. If agreement remains out of reach, the alternative is to apply to the court for property settlement orders.
What the step-by-step process looks like with C + K Family Lawyers
One of you contacts us first. We take instructions from that person, understand the relationship, the asset pool, and what’s been discussed. We can then advise on whether a financial agreement is the right approach and, if so, what it should cover.
If we’re drafting the agreement, we prepare a draft and provide it to your partner. Your partner then instructs their own separate lawyer to review it and provide independent advice. That lawyer may suggest revisions. We work through those between the firms.
Once both parties and both lawyers are satisfied, both parties sign the agreement in the presence of their respective lawyers. Both lawyers sign and date the certificates. The agreement is then executed.
Throughout that process, the communication between the parties stays cooperative where possible. The lawyers manage the legal requirements. The clients make the decisions.
If you’d like to talk through your situation with us, contact C + K Family Lawyers for a confidential, no-obligation conversation.
Key Point: The process is more straightforward than most people expect when both parties are committed to making it work. Two lawyers, two certificates, one clear agreement.
When is the right time to get legal advice about a financial agreement?
Before you need it. That’s the honest answer.
If you’re thinking about a prenup before marriage, don’t leave it until the month before the wedding. If you’re entering a de facto relationship and one of you has significant assets, the conversation is worth having early.
If you’re already in a relationship and concerned about protecting certain assets, or about what a separation would mean, the time to get advice is now, not when things become difficult.
And if you’re already separated, the time to get advice is before you make any informal agreements with your partner, not after.
A financial agreement made under the right conditions, with proper advice on both sides, gives both of you certainty. It doesn’t predict the end of your relationship. It just makes sure that if things do change, you both know where you stand.
That’s not pessimistic. That’s practical.
This article is general information only and is not legal advice. Family law outcomes depend on your individual circumstances. For advice about your situation, speak with a qualified family lawyer.
About the Author
Christopher (Chris) Jones is the Principal Lawyer and co-founder of CK Family Lawyers, a Queensland family law firm. Chris advises on divorce, property settlement, parenting arrangements, binding financial agreements, mediation and domestic violence matters. After working in legal environments where clients felt depersonalised and lost in jargon, he co-founded the firm with Krystina Jones on the belief that people deserve family lawyers who genuinely care, and he works directly with his clients throughout their matters.
