Since December 2000 under the Family Law Act 1975, it has been possible for couples to enter into a Binding Financial Agreement before marriage, commonly known as a "pre-nuptial agreement", which has the effect of regulating the division of their assets, at least in part, upon separation. The agreement may also provide for spousal maintenance.

Parties can enter into a Binding Financial Agreement at any time during the relationship, from when the marriage is planned through to after divorce. Some different considerations apply depending on whether the Agreement is made before, during or after the marriage. De facto couples can enter into a similar Agreement at any time before or during the relationship.

There are a number of formal requirements for both types of these Agreements, and there are also common pitfalls with the drafting of these Agreements. It is necessary for both parties to obtain independent legal advice in relation to the Agreement as a requirement for it to be binding. We can either draft an Agreement for one party, or provide advice on an Agreement to one party prepared by the other party.

There are strict legal requirements in relation to these agreements; if the requirements are not observed, the agreements are not binding.

Like married couples, de facto couples, including same sex couples, may also make agreements regulating the division of their assets, and payment of spousal maintenance on separation. Those agreements can be made: -

• Before cohabitation (Cohabitation Agreements)
• On separation (Separation Agreements and Recognised Separation Agreements)

For couples who cohabited or separated before 1 March 2009, these agreements were governed by the Property Law Act 1975, a Queensland Act. Since 1 March 2009, these agreements, now called "Part VIIIAB Financial Agreements" are governed by the Commonwealth Family Law Act.

There are significant differences between the Queensland legislation - the Property Law Act, and the Commonwealth legislation – the Family Law Act: -

• Agreements made before 1 March 2009 could not validly allow for spousal maintenance upon separation; now they can;
• Agreements made before 1 March 2009 were relatively informal. Agreements made after 1 March2009 have strict legal requirements and the parties must have legal advice.

See our factsheet on:

• Cohabitation Agreements / Pre-nuptial Agreements / Binding Financial Agreements