By Elena Giannattasio, International Family Lawyer (New York & San Francisco), Multi-Jurisdictional Divorce, PLLC
Australia treats prenuptial agreements, known locally as binding financial agreements (BFAs), with a high degree of scrutiny. Since the Family Law Amendment Act 2000, these agreements have been enforceable only when they satisfy the precise safeguards set out in Part VIIIA of the Family Law Act. Australian courts approach BFAs with an emphasis on clarity, fairness, and genuine consent, making careful legal drafting essential for couples navigating global relationships.
A binding financial agreement must:
● Be in writing and signed by both parties
● Be exchanged properly, with the original delivered to one party and a copy to the other
● Clearly outline any spousal maintenance provisions
● Confirm that each party received independent legal advice about their rights, and the practical advantages and disadvantages of entering the agreement
● Include a certificate from each lawyer confirming that such advice was provided
Australian courts may set aside a BFA if it was procured by fraud, duress, mistake, undue influence, or unconscionable conduct, or where later events, such as a significant change in child-related circumstances, create clear hardship.
The Australian High Court’s decision in Thorne v. Kennedy [2017] HCA 49 remains the leading authority on unconscionability and undue influence in this context. Since then, courts have continued to examine BFAs with close attention to power imbalances and the quality of the legal advice provided. In Chaffin v. Chaffin [2019] FamCA 260, the agreement was set aside due to a “special disadvantage” that impaired the weaker party’s judgment. By contrast, in Delrio v. Jindra [2019] FCCA 1186, the court upheld the agreement because no such disadvantage existed, even though both individuals had received advice warning against signing.
Recent cases emphasize that independent legal advice must be real, tailored, and anchored in the parties’ actual circumstances. Before advising on a BFA, Australian practitioners must identify the parties’ existing rights under the Family Law Act, assessing their current assets, financial and non-financial contributions, and any factors related to children. Only then can meaningful comparisons be made between the legal position with or without the agreement. This principle was reaffirmed in Chetri & Thapa [2024] FedCFamC2F 1611.
International Considerations
Complex issues arise when a couple has executed a prenuptial or post-nuptial agreement outside Australia that does not conform to Australian statutory requirements. A foreign agreement, even one valid in the jurisdiction where it was signed, may not be enforceable once a couple relocates to Australia or if the Australian Family Court acquires jurisdiction due to nationality or residence. Generally, a non-Australian marital agreement will not be recognized unless it meets the strict criteria of the Family Law Act.
A foreign choice-of-law or forum clause may, in rare situations, influence an Australian court to defer to a foreign tribunal, but such outcomes are highly fact-specific and far from guaranteed.
Our Cross-Border Experience
At Multi-Jurisdictional Divorce, PLLC, led by Elena Giannattasio international family lawyer in New York and San Francisco, we regularly structure prenuptial agreements that involve U.S.–Australia relationships. Our approach integrates clear, enforceable terms with coordinated advice from experienced local counsel in both jurisdictions. This ensures that each agreement reflects a global perspective with local enforceability, protecting clients as they navigate life across borders.
Foreign Law Disclaimer, Multi-Jurisdictional Divorce, PLLC
This overview concerns foreign law. Elena Giannattasio, Esq. is not admitted to practice in Australia and does not advise on Australian Law. All information is provided strictly for general educational purposes and is not legal advice.