Are Prenuptial Agreements Entered into Overseas Binding in Australia?

There are many reasons people entering a long term relationship may wish to agree beforehand about what happens to their wealth in the event the relationship doesn’t last.  If, you entered into a prenuptial agreement with your partner in a jurisdiction outside of Australia, you may be wondering whether this agreement is binding in Australia if one of the parties makes a property settlement claim in the Family Court of Australia. 

Recognition of Overseas Prenups

Does the Family Court of Australia have to recognise the terms of an overseas pre-nuptial agreement when considering a property settlement claim?  In short, NO.  Irrespective of your citizenship status, the Court may decide to deal with the relationship assets in a manner completely different to the terms of the overseas agreement.  This is because on entering Australia, you are bound by Australian law and the Family Law Act 1975 (Cth) (the Act) sets out specific legal requirements for pre-nuptial agreements or as they are known in Australia, Binding Financial Agreements (BFAs). 

For a BFA to be recognised in Australia, the Act requires: 

  1. Full disclosure by each party about their respective assets; 
  2. The agreement is in writing and signed by both parties; 
  3. Both parties involved in the agreement receive independent legal advice from their respective lawyers before signing the BFA; and  
  4. The two lawyers involved in the agreement to each sign a separate certificate to confirm the necessary detailed advice was given to the respective spouses. 

If your overseas prenuptial agreement does not comply with the above requirements, it is unlikely that a Court in Australia will follow its terms.  At best, the Court may take the overseas agreement into consideration when determining if a property settlement is fair and just. 

The Court will also have regard to the usual principles of contract law. A BFA is a contract. Therefore, the usual grounds for challenging contracts are also applicable to BFAs, including for example, for lack of certainty, mistake, duress, etc. Many of these principles are also incorporated into the Act. 

How we can help 

If you wish to ensure that the terms of your overseas prenuptial agreement to apply in Australia, we can help you to make a new binding financial agreement that meets the requirements of Australian law.  If you would like to speak to someone about putting in place a BFA, call us on 1300 654 590 or email us. 

 

The information contained in this post is current at the date of editing – 28 September 2023.

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