Book an Appointment


Prenuptial and Cohabitation Agreements Legal Services

Pre-Nuptial or Cohabitation Agreements

In some cases, the parties will have entered into a ‘pre-nuptial Binding Financial Agreement’ or a ‘Cohabitation (de facto) Binding Financial Agreement’ before they separated.

If the Agreement made is properly binding and enforceable, then the property settlement will be governed by the terms of that agreement rather than the provisions in the Family Law Act 1975 (Cth). If there is a dispute about whether such an agreement (or a part of it) is binding and enforceable then the Court is empowered to make a determination of the issue.

If the Court decides the Agreement is void/unenforceable then it may set aside the Agreement and the property settlement process will be governed by the Family Law Act. If the Court decides to only set aside part of the Agreement, then the part of the Agreement that has not been set aside will govern the property settlement process.

If you have a pre-nuptial or cohabitation agreement and you or your former spouse are unsure if it is enforceable, then it is critical to get legal advice straight away since the consequences of such a dispute are often very serious and costly.

For more information, book an appointment with our family law solicitors at BWJ Law.

Pre-Nuptial or Cohabitation Agreements

Frequently Asked Questions

A cohabitation agreement can be described as a legally binding contract/agreement between two parties that live together or have the intention of living together, in a committed relationship.

The Family Law Act (1975) governs Binding Financial Agreement’s (BFA’s) and a cohabitation contract is a document that lists each persons rights and obligations whilst setting out what will happen to their property in the future, if they separate.

There are many different labels for cohabitation agreements. These include: co-habitation contracts, co-habitation settlements and most commonly, prenuptial agreements.

Prenuptial agreements are signed prior to marriage and they specify what will happen to each parties assets, property, and what obligations both parties have, in the case of a divorce.

Also read: What is the difference between a Binding Financial Agreement and Consent Orders?

A cohabitation agreement can cover a range of issues, including:

  • How you will split your finances during the relationship.
  • What will happen to your property, if you separate.
  • Spousal maintenance.
  • Any debt you may have. 
  • What will happen to children involved in the relationship, including child support and custody arrangements.

There are many justified reasons why a cohabiting couple would want to formalise their relationship with a cohabitation contract.

Some individuals may think that it is an important step to protect the assets that they bring to the relationship especially if one party is brining more wealth and assets into the relationship compared to the other party.

In the scenario of children from a previous relationship being involved, a party/parent may want to ensure that their wealth goes to their children in the event of their death as opposed to their current partner.

Cohabitation agreements set clear boundaries that explain the division of a party’s property and assets in the event of a relationship break down.

Couples that are cohabitating are not automatically labelled as a de facto relationship and therefore, they do not have the same legal rights and responsibilities as a couple that is married or in a de facto relationship.

This means that if a couples relationship breaks down and they separate, there is no guaranteed right to division of property, spousal maintenance, or superannuation splitting as there would be in the case of a married or de facto couple. 

With prenuptial and cohabitation agreements in mind, some useful things to give thought to are:

  • Would you like to protect your assets that you hold from the commencement of the relationship from a claim by your partner?
  • How are jointly owned assets that are accumulated during the relationship dealt with?
  • How are joint funds being paid to meet a mortgage during the relationship dealt with (even in the instance of one party owning the property).
  • Would you like to make a provision regarding spousal maintenance?
  • Would you like to keep each parties’ finances separate during the relationship?
  • What is the timeframe that you would like to agreement to last for? Agreements can be for the entire duration of the relationship or a set amount of time.
  • Will you need to review the agreement on occasion during a certain period or if an event takes place?
  • How will the property be divided if the relationship breaks down?

Different individuals will have different viewpoints on cohabitation agreements.

Some may think that relationships should be built on love, trust and respect.

However, others, and especially ones that have been through previous relationship breakdowns, feel that it spares both parties from the stress and acrimony of possible future proceedings if things don’t work out.

If you and your partner are considering making a formal agreement, you will need to have a frank and honest conversation with each other.

Both parties will need to have an open discussion regarding all of the financial assets they hold, and the circumstances they are currently in.

The assistance of an independent legal advisor or even a mediator to resolve any fine prints of the agreement may also be required.

It is important to note that if full and honest disclosure is not made by each party then the agreement could be set aside based on incorrect information which is misleading.

A binding prenuptial or cohabitation agreement may be set aside by a Court based on the reasoning that if the agreement will give raise a substantial injustice toward one party.

Another reason may be that there are children involved and that the party with the caring capacity for the children would experience financial difficulties if the agreement is not set aside.

A relationship breaking down is usually an unforeseeable event and it is important that you take pre-emptive steps to protect your assets and property as soon as you can whilst you and your partner are on good terms.

Many couples who will soon be married or who are currently re-partnering will have to consider making an agreement that will specify and regulate their financial relationship both during the time they are married and also the time that separation or divorce may occur.

There are a range of benefits in having a cohabitation agreement with your partner, these include:
  • The protection of your assets as if you own property, have savings or have other valuable assets, a cohabitation agreement can protect your interests in the event that the relationship breaks down.
  • Transparent financial arrangements are another benefit as having a cohabitation agreement in place assures that finances can be clearly set and this in turn prevents arguments arising during your relationship.
  • A cohabitation agreement can also stabilise your relationship as some couples find that it forces them to discuss and agree on important issues upfront.
Cohabitation agreements cover a large range of issues, some of the most seen issues include:
  • Property and assets – which party owns what and what will happen to each party’s property and assets If the relationship breaks down.
  • Finances – how parties will manage their finances during the relationship e.g., any joint bank accounts or credit cards.
  • Children – if you have children from a previous relationship, a cohabitation agreement can provide reassurance and transparency on how they will be financially supported and what the living arrangements will be for them moving forward.
  • Pets – pets may be a less common topic, but a cohabitation agreement can most certainly set out which party will be responsible for them if the relationship deteriorates.
A Cohabitation and prenuptial agreements are closely comparable as they both set out financial agreements between parties made prior to a relationship breakdown. These agreements do however differ as cohabitation agreements can be entered into at any timeframe during a relationship whilst prenuptial agreements mist be made prior to marriage. Any cohabiting couple can arrange a cohabitation agreement, this means that whether you are in a heterosexual or same-sex relationship and, whether you have plans to marry or not, you may still enter into an agreement. Furthermore, cohabitation agreements can be converted in prenuptial agreements if you and partner eventually do decide to marry.

Get in touch with a separation lawyer

Seeking legal advice during divorce or separation is crucial. Our skilled lawyers provide guidance on your rights, the separation process, and key issues like property division and child custody.

At BWJ Law, your best interests are our priority. You’re not alone; our family law experts are here to support you.

Contact us for dedicated help.

Where to Find Us?

Lisa Lucas

Lisa Lucas

Legal Bookkeeping & Accounting

Meet Lisa, our seasoned professional who joined our team in August 2022, boasting an impressive background of over two decades in accounting. With a solid foundation in IT and a Bachelor of Science under her belt, Lisa’s journey evolved as she not only managed her own accounting firm but also earned postgraduate degrees in both accounting and commercial law.

In her pivotal role, Lisa is instrumental in maintaining the firm’s compliance and ensuring seamless operations. Her wealth of experience brings a wealth of knowledge to our team, contributing to our success and client satisfaction.

Beyond the numbers, Lisa finds balance in her life through activities like Pilates and walks with her beloved dogs. Her dedication, expertise, and passion make Lisa an invaluable asset to our team, driving us towards excellence in every aspect of our work.

Amy Hayslep

Amy Hayslep


Amy joined our team in December 2022 as a receptionist, where she plays a vital role in managing our firm’s administrative support and daily operations. 

Her commitment to excellence and efficiency has greatly contributed to the smooth running of our office. 

Amy is currently pursuing a Bachelor of Business with a focus on Marketing at the University of the Sunshine Coast, a testament to her dedication to professional growth and understanding of business dynamics. 

Amy’s aspiration to integrate her marketing insights into her current role demonstrates her forward-thinking approach and commitment to continuous improvement. Outside of work, Amy enjoys Pilates, baking, and gardening.

Jon Staby

Jon Staby


Jon was born in Windhoek, Namibia and moved with his family to Brisbane in 2005. Jon is currently studying his Bachelor of Laws and aims to complete it by the end of 2024. 

Jon has been currently working as a Paralegal since April 2023 and has a keen interest in all family law areas.  

Jon believes in the law to empathetically and expertly help clients to reach the best outcomes for their unique circumstances. 

In his free time, Jon’s hobbies include painting, playing basketball with friends, and watching television shows with his pet cat Luna.  

Serena May

Serena May

LLB (Hons) BBus

Serena was admitted to the profession in 2022 and holds a Bachelor of Laws (Honours) and Bachelor of Business from QUT. 

Serena has previous experience as a Barrister’s Assistant in family law as well as working in a mid-tier commercial law firm in property law, wills and estates, employment law and construction disputes. This experience has provided her with the opportunity to learn from an array of senior legal practitioners before choosing to specialise in family law.

Serena is passionate about ensuring her clients feel well informed throughout their matter. Serena acknowledges every personal circumstance is unique and no other person knows exactly what it is like to walk in your shoes. 

Serena recognises that clients are often experiencing immense stress and require compassionate and efficient communication from start to finish to empower them to move on to the next chapter of their life.

On her weekends Serena enjoys heading to the coast for a surf and spending time with her poodle pup, Miss April May.

Michael Johnson

Michael Johnson

Practice Leader – Founder

Michael was awarded a Bachelor of Laws with Honours from QUT in 2012, and was admitted as a lawyer in 2013. 

He also has a Bachelor of Science from UQ which he was awarded in 2007 (before deciding that a career in law would be more interesting than science).

Michael has practiced exclusively in the areas of Family Law, Child Safety (Care and Protection), and Domestic Violence since mid-2014. 

Michael has experience as a Separate Representative for children in Child Safety cases and has appeared on behalf of hundreds of people in Family Law and Domestic Violence cases in Queensland and the ACT.

Michael’s experience means he has a particularly keen insight into how to best avoid Court and he has an excellent record of settling cases quickly and without unnecessary conflict and cost. 

That said, he also knows how to best prepare and conduct litigation if Court becomes unavoidable, and he will expertly guide you through even the most complex and delicate case.

Michael takes a genuine interest in his clients and will make sure that you are properly advised in a way that is easy to understand, without all the unnecessary jargon that so many lawyers love to use. You can trust Michael to be direct, flexible, and empathetic. 

When he is not at work, Michael loves being in the outdoors, whether that’s fishing from his kayak or working in the garden. He also loves to cook and experiment in the kitchen.

Matthew Watt

Matthew Watt

Practice Manager – Founder

As one of the founders of BWJ Law, Matt is an indispensable member of the executive team. 

He plays a pivotal role in the day-to-day operations of the firm, focusing on implementing operational strategies and realizing the organization’s vision. 

This ensures that all employees are equipped with the necessary resources to perform at their best, delivering unparalleled service to clients.

An active member of the Australasian Legal Practice Management Association (ALPMA) and an associate member of the QLD Law Society, Matt consistently stays updated with the latest in legal practice management. 

He recognizes the significance of continuous professional growth, ensuring that he offers the best support to legal practitioners. 

Moreover, he adeptly manages a diverse range of corporate and strategic responsibilities inherent to the role of a practice manager.