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How to set aside a Binding Financial Agreement (BFA) or Prenup

The court is able to set aside binding financial agreements only in certain circumstances. These include:

  1. The agreement was obtained by fraud, for example, non-disclosure of a material matter such as your complete financial assets.
  2. The agreement is void, voidable or unenforceable, for example, the binding (legal) requirements were not fulfilled; or
  3. Circumstances have arisen since the agreement was made that make it impracticable for the agreement or part of the agreement to be carried out; or
  4. Since the agreement was made, a material change in circumstances that relate to the care, welfare and development of a child of the relationship has occurred.
  5. A party to the agreement engaged in unconscionable conduct in the process of developing the financial agreement, for example, telling a spouse on the day of a wedding that the wedding is off unless the agreement is signed.

If you are successful in providing that the financial agreement should be set aside, then the court will deal with your matter as if the agreement never existed.

No lawyer will tell you that a prenup will definitely be upheld by the court. One of the problems is that there could be a considerable period of time between the signing of the agreement and the breakdown of the relationship and the implications of the agreement may not have been foreseen or may not be as indented (or a multitude of other reasons).
A Binding Financial Agreement (BFA) or Prenuptial Agreement are binding documents in Australia and the most certainty the law can currently provide. After a separation, if one party is unhappy with the prenuptial agreement they entered into, there are only limited grounds upon which it may be overturned. If one party would prefer a court ordered outcome to the agreement they previously signed, then they must first prove that one of the above circumstances exist, however this can be an expensive and potentially fruitless task.
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