When news broke that Nicole Kidman and Keith Urban may have included a so-called “cocaine clause” in their prenuptial agreement, the internet lit up. According to reports, the clause rewards Urban with a payout for each year he remains sober during their marriage.
It’s sensational celebrity gossip, sure, but it also raises a fascinating legal question. In Australia, would such a clause be enforceable under a Binding Financial Agreement (BFA)? And more importantly, should you ever try to include one?
Let’s unpack what the law says and why a clause like this may cause more legal drama than it’s worth.
What Is a “Cocaine Clause” or Behaviour Clause?
A behaviour clause ties financial benefit or loss to one party’s conduct. It might reward sobriety, fidelity, or financial responsibility. The Urban-Kidman example reportedly linked sobriety to an annual payment.
In Australia, the equivalent of a prenup is a Binding Financial Agreement. These are governed by the Family Law Act 1975 (Cth), and while parties have wide drafting powers, not every creative clause will stand up in court.
Legal Challenges to a Behaviour Clause in a BFA
Freedom of Contract vs Public Policy
BFAs allow flexibility, but courts can intervene if a term is seen as unconscionable, punitive, or against public policy. Addiction is often treated as a health issue, not a moral failing. A clause penalising relapse might not sit well with a court.
The Agreement Must Be Valid and Compliant
Even before you get to the clause itself, the BFA must tick all the formal boxes. That includes independent legal advice, full disclosure, and proper execution. If any of those are missing, the whole agreement could be set aside.
Conduct Isn’t Usually the Focus
Australian family law generally doesn’t punish people for bad behaviour. Courts focus on contributions and future needs, not morality. A clause that tries to financially punish one party for relapsing into addiction could be seen as crossing the line.
Evidence Problems
How do you prove a breach? Would drug tests be required? What about hearsay or disputed accounts? Even if you draft a clause with enforcement in mind, practical issues around proof can make it nearly useless.
Undue Influence or Duress
If one party is in a vulnerable position or feels pressured into signing, especially around clauses that seem invasive or conditional, a court could find the clause was agreed to under duress or unfair pressure.
Partial Invalidation
The good news? If a clause is invalid, it doesn’t always sink the entire agreement. Courts can strike out a single clause while preserving the rest, provided it still makes legal and logical sense.
Are Behaviour Clauses Ever Enforceable?
They might be, if:
- They’re not punitive or exploitative
- Both parties had independent legal advice
- The behaviour is clearly defined and objectively measurable
- The clause forms part of a fair, balanced agreement
- There’s a clear and reasonable mechanism for enforcement
But if it feels more like a punishment than a plan, it probably won’t survive challenge.
Should You Try to Include One?
Before inserting a clause like this into your BFA, ask:
- What exactly are we trying to protect?
- Can we achieve that in a more practical or enforceable way?
- Are we prepared to go to court to fight over it?
- Will this clause stand up to scrutiny years from now?
Sometimes, it’s better to use financial structures, trusts, or staged asset releases rather than behaviour-based penalties. If addiction or instability is a real concern, there are smarter, less risky ways to protect your interests.
Final Word
While it’s tempting to get creative with clauses in a Binding Financial Agreement, especially when there’s a history of substance use or other risks, “cocaine clauses” are on legally thin ice in Australia.
Courts will not enforce terms that feel punitive, vague, or contrary to public policy. That doesn’t mean you can’t protect yourself, it just means you need a lawyer who knows how to draft defensively and strategically.
At Green & Associates, we build BFAs that actually work, not just look tough on paper.
Thinking of including a behaviour clause in your financial agreement? Speak to us first, because in law, as in love, clarity is everything.
