You signed a prenup thinking it would make things easier. But what really happens when the relationship ends and divorce begins?
In Australia, a prenup is called a Binding Financial Agreement (BFA). This is a legal agreement made before, during, or after a marriage or de facto relationship.
It sets out how property, money, and financial matters will be handled if the relationship ends.
If the prenup is valid and done properly, it can be used instead of going through the usual property settlement process in court.
That means both people agree ahead of time how things should be split. But it’s not always that simple. Things can change, and sometimes these agreements are challenged.
Understanding what a prenup covers, what it does not cover, and what steps you should take if you’re divorcing with one in place can help you feel more prepared and protected.
What Happens to Property Division If a Prenup Exists?
When a couple has a valid prenup and they divorce, that agreement is usually followed. The agreement often sets out who gets what, including money, property, superannuation, debts, or anything else of value.
If the prenup covers these things clearly, and it was signed properly, then the court usually expects both people to stick to the terms.
This can make the divorce process shorter and more straightforward, because the property division has already been agreed to.
However, there are times when the court may look more closely at the prenup. This can happen if:
- One person was pressured to sign the agreement
- The agreement is very unfair
- Big changes happened since the agreement was made (like having children)
- One person didn’t fully share their financial information
If the court believes the agreement isn’t fair or wasn’t made properly, it may decide not to follow it. That’s why it’s important that both people get legal advice before signing a prenup and that it is written clearly.
Also Read: What’s a Prenup in Marriage? Australian Legal Basics
Does a Prenup Affect Spousal Maintenance or Superannuation?
A prenup can include terms about spousal maintenance and superannuation, but it depends on what was included when it was written.
Spousal maintenance is when one person pays money to support the other after the relationship ends. A prenup can say that no spousal maintenance will be paid, or it can set out how much and for how long.
However, if someone is struggling financially after the divorce and the agreement leaves them in hardship, the court might still look at whether support is needed, especially if children are involved.
Superannuation (super) is treated like property in Australian family law. A prenup can include plans to split super between the couple or leave it untouched.
If the agreement covers super clearly, it can help avoid arguments later. But, like with all parts of a prenup, the wording needs to be clear, and both people must have understood it when they signed.
If either spousal maintenance or superannuation is not mentioned in the prenup, it could be discussed and dealt with later, either through agreement or by the court.
Also Read: Does a Prenup Expire? Key Legal Facts for Married Couples
What Should You Do If You’re Divorcing With a Prenup in Place?
If you’re separating and you have a prenup, the first step is to find a family lawyer who can help you understand what the agreement means.
Not all prenups are the same. Some cover everything, while others may only include certain items or assets.
Here’s what you can do:
- Get a copy of the agreement: Make sure you read it fully and understand what it covers.
- Speak to a family lawyer: A lawyer can help explain your rights and what the agreement may mean in your situation.
- Check if the prenup is still fair and valid: Over time, people’s situations can change. If there have been big changes like having children or major health issues, the agreement might no longer reflect what’s fair.
- Review any missing areas: If something important is not included in the prenup (like debts, family business, or newer assets), it may need to be handled through separate agreement or court.
- Stay respectful but firm: Property settlement is emotional, especially with past promises or expectations. A calm and clear approach helps protect your future and keeps things from becoming more difficult.
If both people are willing, you can try to reach an agreement without going to court. Your lawyer can help with this.
If that’s not possible, then the court may become involved, and the judge will decide if the prenup should be followed or set aside.
Also Read: Alimony Prenup: 7-Point Comprehensive Guide
Understanding What You Signed Matters More Than Ever
Getting divorced after signing a prenup can feel confusing.
Many people think a prenup will solve everything, but the truth is that it only works if it was done fairly, legally, and covers the right things. If you’re in this situation, don’t rush.
Take the time to understand your agreement, speak with a trusted lawyer, and protect your interests with care and confidence.
Divorcing With a Prenup and Feeling Uncertain?
Do you have a prenup and aren’t sure what it means for your divorce? Ipswich Family Lawyers can help you understand your agreement, your rights, and your options with clarity and care.
Our team offers calm, professional support to help you move forward with confidence. Reach out today to schedule a confidential consultation.
