When two people choose to get married or enter a de facto relationship, they sometimes decide to set up a prenuptial agreement.
In Australia, this agreement is often called a Binding Financial Agreement, or BFA for short. It helps couples decide how money, property, and assets will be divided if the relationship ends.
But life does not always go as planned. People change, situations shift, and financial circumstances evolve. What once felt like a good arrangement might no longer reflect the reality of the couple’s life together.
This is where the question comes in: can a prenup be changed? The answer is yes, but the process is not casual. It requires proper steps, agreement from both partners, and compliance with legal rules.
Changing A Prenup After Marriage
A common question couples ask is whether a prenup can be changed after marriage. The short answer is yes, but there are only certain ways this can happen.
A BFA is a binding contract, and like most contracts, it cannot be altered simply through an informal agreement or verbal promise.
There are two main ways to make changes:
1. Creating A New Agreement
Sometimes, the original agreement no longer fits. In that case, a couple can cancel the first prenup and create a completely new BFA.
This new document would need to be properly drafted, reviewed, and signed by both people, with each receiving separate legal advice.
2. Signing A Deed Of Variation
Instead of throwing out the old agreement, a couple can make adjustments by signing what is called a Deed of Variation.
This is a legal document that changes certain parts of the prenup without replacing the entire agreement. Again, it must follow proper rules to be valid.
If both partners agree, then these changes can take place. But if one partner refuses, the prenup stays the same unless a court becomes involved.
Legal Requirements For Amending A Prenup
Changing a prenup is not as simple as just writing new terms on paper and signing them. There are requirements that must be followed so the changes hold up legally. Some of the most important points include:
- Both parties must agree. A prenup cannot be changed unless both people sign off on the modifications.
- Independent legal advice is needed. Each person must get separate advice from a lawyer who specialises in family law. This is to make sure both understand the meaning and impact of the changes.
- Written and signed changes. The adjustments or new agreement must be in writing and signed by both people.
- Fair treatment. The terms cannot involve pressure, unfair influence, or dishonesty. Both people should feel the changes are reasonable.
- Compliance with the Family Law Act 1975. Any modified or new agreement must meet the requirements of this law, which governs Binding Financial Agreements in Australia.
If these steps are not properly followed, the agreement may not be enforceable. That is why taking the time to do it correctly matters.
Also Read: Protecting Assets in a Relationship: Legal Best Practices
When One Person Wants Changes And The Other Does Not
Sometimes, only one partner wants to adjust the prenup while the other wants to leave it as is. Since a prenup is a contract, it cannot be changed without both people agreeing. This can make the situation challenging.
In this case, there are a few possible paths forward:
- Negotiation and mediation. The couple may try to sit down with a mediator or negotiator to discuss what feels fair and see if they can reach a middle ground.
- Court intervention. If one partner believes the prenup is no longer fair or reflective of current circumstances, they may ask a court to look at it. Courts can review and, in some cases, set aside a prenup.
- Challenging the agreement. If there is proof that the original prenup was signed under pressure, without proper advice, or with false information, one person may argue that it should not be enforced.
If no agreement is reached and the court does not intervene, the prenup remains the same as originally written.
Read also: The Benefits of Working with Lawyers in Ipswich for Prenuptial Agreements
Can A Court Overturn Or Modify A Prenup?
Courts in Australia usually prefer to respect Binding Financial Agreements. However, there are certain situations where a court may step in and decide not to enforce a prenup.
This might happen if:
- Fraud or pressure was involved. If one partner was pressured to sign, or if there was dishonesty about finances, the agreement may be set aside.
- Major changes occurred. If something significant has changed, such as illness, financial hardship, or the birth of children, a court may find that sticking to the prenup would be unfair.
- Legal requirements were not met. If the original prenup did not meet the proper standards under the Family Law Act 1975, it may be declared invalid.
- Unfair advantage was taken. If one person took clear advantage of the other when the prenup was created, the court may choose not to enforce it.
It is not common for courts to step in, but it does happen in certain situations. This is one reason why it is important for prenups to be drafted with care in the first place.
Life Changes And The Importance Of Updating Agreements
No one can predict the future. A prenup that worked perfectly at the beginning of a relationship may feel outdated years later.
Couples may buy property, start a business, or have children. Health issues or career changes may affect finances.
Because of this, it is often wise to review a prenup from time to time. Even if both partners are comfortable with the original agreement, checking whether it still makes sense can prevent problems later on.
Keeping communication open helps both partners feel secure and respected.
Changing A Prenup
Relationships and life circumstances are rarely static. What makes sense before marriage may look very different years down the road. That is why couples sometimes need to make adjustments to a prenuptial agreement.
In Australia, changes can be made by creating a new Binding Financial Agreement or by signing a Deed of Variation.
Both partners must agree, the process must follow proper legal steps, and each person needs independent legal advice.
If disagreements arise, options like mediation or court review may be available. Courts can overturn or modify a prenup, but usually only under specific conditions.
At the heart of it, a prenup is about fairness and clarity. Updating it when life shifts can help couples move forward with peace of mind.
Need Guidance On Your Prenup?
Are you thinking about changing your current prenuptial agreement, or wondering if your situation makes an update necessary?
At Ipswich Family Lawyers, our team can help you understand your options and support you through the process.
Our legal professionals have experience working with Binding Financial Agreements and can provide guidance tailored to your circumstances.
If you are ready to discuss your agreement and explore the best way forward, reach out to us today.
