How can I get a prenup set aside?

A prenup or Binding Financial Agreement (BFA) cannot be updated. If you do not agree to the terms of your BFA, you can either reach an alternate financial agreement with your partner or make an application to the Court to set aside the Agreement.

When will a court set aside a BFA?

The Federal Circuit Court may set aside a prenup in a limited number of circumstances. These include:

 

  • the Agreement is void, voidable or unenforceable. This can be established if the Agreement was obtained through undue influence, duress of unconscionable conduct
    • An example of duress would be if an Agreement was signed too close to the wedding between the parties
  • the Agreement was obtained by fraud or failure to disclose important information
  • a party to the Agreement entered in order to defraud a creditor, or with reckless disregard to the interest of a creditor
  • the Agreement has become impracticable due to a ‘material’ change in the parties’ circumstances
  • if the Agreement is not set aside, there will be hardship for a child of the relationship due to a ‘material’ change in circumstances since signing the Agreement
  • the conduct of one of the parties in making the agreement was unconscionable (not right or unreasonable)
  • the Agreement covers at least one superannuation interest that is unsplittable (under Part VIIIB of the Family Law Act 1975 (Cth))
  • a payment flag is in operation on a superannuation interest (Part VIIIB of the Family Law Act 1975 (Cth)) covered by the agreement and it is unlikely that the payment flag will be lifted

 

The Court will NOT set aside an agreement if it is simply unfair to one of the parties.

What happens once a prenup is set aside?

Discussion of what to include in a BFA will require open and honest communication between yourself and your partner. Although BFA’s can be entered into after you and your partner have already separated or divorced, it is often easier to discuss what you want in a BFA whilst the relationship is still happy and you and your partner are together.

 

Some issues you should bring up with your partner are their current financial contribution to the relationship and whether this is likely to change due to factors such as existing or future children, illness, injury, dismissal or retirement.