A prenuptial agreement, “prenup,” or more properly termed, a binding financial agreement, is a contract, although a very particular kind of one with special requirements. Many lawyers recommend them to clients considering marriage or those who are involved in a de facto relationship because prenups tend to prompt a frank discussion of financial matters, even in the happiest of relationships. However, these agreements usually come to public consciousness in an action for divorce. Challenging a prenuptial agreement can be an uphill battle because courts like to uphold contracts, even somewhat lopsided ones, whenever possible. This fact sheet discusses the four main arguments to challenge a prenuptial agreement. The family law lawyers at Owen Hodge Lawyers have great depth of experience in drafting, reviewing and challenging prenuptial agreements. If you would like to review your options with respect to an agreement, please call us at 1800 770 780 or via email at ohl@owenhodge.com.au for a free consultation. We look forward to helping you.

1. PRENUPTIAL AGREEMENT:
HOWTO CHALLENGE IT?
What is a prenuptial agreement?
A prenuptial agreement,“prenup,”or more properly termed, a binding financial agreement, is a contract, although a very particular kind of one with special
requirements. Many attorneys recommend them to clients considering marriage or those who are involved in a de facto relationship because prenups tend
to prompt a frank discussion of financial matters, even in the happiest of relationships. However, these agreements usually come to public consciousness in
an action for divorce.
How to challenge a prenuptial agreement?
Challenging a prenuptial agreement can be an uphill battle because courts like to uphold contracts, even somewhat lopsided ones, whenever possible.
Nonetheless, it can be successfully done when:
ARGUMENT 1:
The agreement does not meet the strict statutory
requirements of the Family Law Act (1975)
The strict requirements of the Family Law Act are meant to set a bright
line standard against which the more fundamental, if fuzzier, contract
principles can be applied. Briefly, a prenuptial agreement must be in
writing, contain full disclosure of each party’s finances and be signed by
both. In addition, both people must have had separate, independent
legal counsel, certified to the court. Finally, of course, both parties must
get a copy. If these requirements are met, the presumption will be that
the agreement is enforceable, and the uphill battle begins.
ARGUMENT 2:
The Prenuptial AgreementWas NotVoluntary
This might be the situation where one party was a minor, had
diminished mental abilities, was not fluent in the language in which
the document was written or was intoxicated at the time the agree-
ment was executed.
The last case is often difficult to prove and requires a demonstration of
more than just the usual bad judgment.
More likely, this argument would be based on undue pressure, a threat
of some kind, or an agreement presented at the altar, for example.To
be enforceable, a prenuptial agreement must be prepared and
executed sufficiently ahead of the wedding for both parties to have
had a reasonable time to consider it and consult with an attorney.
ARGUMENT 3:
There is Some Underlying Misrepresentation
This might be the case where one party was unaware that the
agreement being signed was a prenuptial agreement or was encour-
aged not to read it because it was“just some paperwork.”
The real issue is likely to be the completeness of the financial disclo-
sure. If, at the time the agreement was signed, one party believed the
other was a penniless bicycle mechanic, rather than the proud owner
of a yacht and a mansion, the prenuptial agreement might be set
aside on the basis of fraud.Tangentially related are representations in a
prenuptial agreement that are simply unenforceable.
ARGUMENT 4:
The Agreement is Grossly Unfair, or Unconscionable
Although lawyers like to view prenuptial agreements as a tool for
financial planning so that couples can live happily ever after, the
truth is that they are often used to protect the assets of the party
who comes into the marriage with more of them.
Prenups are often biased in favor of one party, and that is perfectly
within the law if consent was informed and voluntary.The law will
generally not rescue someone from a bad deal.
Some agreements, however, including those that leave one of the
spouses with no assets on divorce, are so shocking that courts may
step in to modify them. Even the most zealous of drafters would not
recommend leaving either party in poverty.