Yes, it can-provided your paperwork is tighter than your uncle’s grip on the family barbeque tongs.

In the land down under, Binding Financial Agreements (BFAs) are the local flavour of prenuptial contracts, and drafting one that actually protects a yet-to-be-received inheritance takes more than a template downloaded after midnight. It takes strategy, transparency, and-as every Google search reminds us – lawyers that draw up prenups.

Key Takeaways

  • A prenup in Australia must be a Binding Financial Agreement made under the Family Law Act 1975 (s 90B, 90G).
  • Future inheritances are only “expectations” until the money lands-courts treat them differently from assets already in your bank.
  • Courts can override a BFA on grounds such as duress, fraud, or if it’s simply unfair (s 90K), so draft with care.
  • Include full disclosure, independent legal advice (yes, each of you needs your own solicitor), and periodic reviews to keep the agreement watertight.
  • The 2024 property-reform amendments heightened scrutiny on disclosure; hiding Grandma’s secret share portfolio is now riskier than stepping on Lego.

What Counts as a Prenup in Australia?

Australian family law politely declines the term “prenup” and instead hands you a Binding Financial Agreement. Executed before marriage, a BFA:

  • Names the legislation. Cite s 90B to show you read beyond page one.
  • Demands independent legal advice. Each partner must receive written confirmation they were warned of their rights, risks, and the possibility the Collingwood-supporting spouse will eventually gloat.
  • Survives formalities. Signatures, time-stamped certificates, and no last-minute scribbles on café napkins.

Miss a step and the docment’s validity melts faster than a Paddle Pop in February.

Future Inheritance: Expectation or Asset?

Picture this: your parents promise you a rustic Yarra Valley vineyard someday. Until the will vests-or the grapes arrive-Australian courts label that promise an “expectation” rather than property. Three practical consequences follow:

  1. No precise value exists yet, so locking in a dollar amount in the BFA is tricky.
  2. Contributions still matter. If the inheritance is received during marriage, a court can consider it a post-separation contribution by the beneficiary spouse when divvying property.
  3. Timing is everything. A court may treat an inheritance received after separation differently, often letting the beneficiary keep a larger share-provided there was no joint effort in acquiring it.

Moral? Draft clauses that spring into effect on receipt of the inheritance, not before.

Court Override: When Your Prenup Can Crumble

Despite your best intentions (and legal invoices), a judge can set aside a BFA under s 90K. Common triggers include:

  • Duress or undue influence. If one partner signs while the other waves wedding invitations like ransom notes, the agreement’s toast.
  • Non-disclosure. “Oops, forgot my Cayman Islands account” guarantees judicial eyebrow-raising.
  • Unfairness. Post-Thorne v Kennedy (2017), an agreement that leaves one spouse at risk of financial hardship is vulnerable-especially if children arrive.
    Significant change in circumstances. A surprise baby, serious illness, or zombie apocalypse can make the deal impracticable.

Pull quote: “Equity does not permit a party to bind another to an agreement that is, in all the circumstances, unconscionable.” – High Court in Thorne v Kennedy

Translation: if the agreement looks like daylight robbery, a judge may bring the ski mask.

Drafting Traps and How to Dodge Them

Below is your one-and only-listicle in this section (we promised, didn’t we?):

  1. Use a trigger clause. State that any inheritance will remain separate unless mingled with matrimonial funds.
  2. Provide valuation mechanisms. Insert a formula (e.g., “market value within 30 days of probate”) to avoid arguments over Aunt Mabel’s antique teaspoons.
  3. Mirror your estate plan. Coordinate wills and testamentary trusts so the BFA and the will aren’t playing tug-of-war.
  4. Review regularly. Life happens-updated after major events such as the birth of a child or acquisition of a new hobby farm (kangaroos not included).
  5. Keep full disclosure proof. Retain the spreadsheets, statements, and perhaps a photo of the shoebox full of share certificates-courts love paper trails.

Follow these, and your BFA is more likely to survive scrutiny than your New Year’s fitness resolution.

Case Snapshot: What Recent Decisions Teach Us

Thorne v Kennedy (2017): The High Court declared a prenup void due to duress and unconscionability-turns out giving your fiancée days to sign or cancel the wedding is not romantic.

Chaffin v Chaffin (2019): A BFA quarantining a future cattle-station inheritance was upheld because both parties had comprehensive advice and equal bargaining power.

Family Law Amendment Act 2024: New disclosure duties mean deliberately hiding likely inheritances can now invite civil penalties-no family-BBQ invitation required.

Taken together, the message is clear: fairness sells; secrecy sinks.

Alternatives to Relying Solely on a Prenup

Even Fort Knox has back-up measures. Consider:

  • Testamentary trusts to keep assets for lineal descendants.
  • Post-nuptial agreements after circumstances change.
  • Financial-resource clauses acknowledging gifts without locking in value.

Stack the strategies and your legacy stands taller than the Big Pineapple.

Conclusion

Protecting an as-yet-unreceived inheritance is possible, but only with a meticulous Binding Financial Agreement, ongoing transparency, and professionals who’ve walked this legal tightrope before. Ready to secure your future grapes, gold, or Granny’s vintage record collection? Tonkin Law is here to help-so your inheritance stays in the family and your romance stays out of the courtroom.

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