Areas of law
Pre-nuptial Agreements
While it’s never a couple’s intention for their relationship to break down, it does happen.
An important and practical step when starting a new relationship or taking your relationship to the next level is to secure your current and future finances – things like savings, Property - includes every possible interest that you have. Examples include: shares, interest in loan, company loan accounts, vested interest in an estate, option to purchase, property of bankrupt party, superannuation, a debt owed to you, licences and permits that can be transferred, property outside Australia, inheritances, beneficiary under a will.property, inheritances, or even Debt can be things such as home loans, personal loans, credit cards, unsecured loans, finance, unpaid tax.debt.
While we often think of financial agreements being invoked during a Divorce is the formal legal ending of a marriage. It is separate and distinct from property settlement and parenting arrangements after the breakdown of a marriage. divorce, they can also be applied to Non married couples means a de facto relationship. The Family Law Act 1975 defines this as a relationship between two people (who are not legally married or related by family) who, having regard to all of the circumstances of their relationship, lived together on a genuine domestic basis.
The other considerations to consider are:
The duration of the relationship (i.e. whether the parties have lived together for a period of 2 years or longer);
Whether a sexual relationship existed;
Whether there are any children of the relationship;
Whether a sexual relationship existed between the parties;
The extent and nature of shared residence;
The degree of financial dependence between the parties;
The degree of mutual commitment toward a shared life;
The reputation and public aspects of the relationship; and/or
Ownership, use and acquisition of the parties’ property.non-married couples, and at any time during a relationship.
Here are some common questions we are asked about prenups:
What is a prenup, it and will it hold up?
What is it?
A prenup is private agreement between two people that is legally enforceable. The two people must intend to enter a marriage or defacto relationship.
The Family Law Act sets out very strict conditions that must be adhered to in order for the agreement to be binding and enforceable. These are set out in the next question.
The contract sets out what will happen to both of your property/assets, liabilities and superannuation if you separate.
A prenup can also deal with all financial situations that may arise after a separation, including spousal maintenance and child maintenance.
Will it hold up?
- New children. If the prenup does not adequately provide financial certainty for the primary carer, it may be set aside because that parent may suffer financial hardship by caring for extra children.
- Pressure. If one party was unduly pressured into signing the prenup, they may wish to challenge the agreement.
- Not complying with the legislation. This is set out below. If any of those conditions are not met, the agreement may be challenged and set aside.
- Unfair agreement. If the terms of the prenup are unreasonably inequitable, the agreement may be successfully challenged.
What are the conditions for a prenup to be legally binding?
- The pre-nuptial agreement must be in writing.
- The agreement must be signed by each party.
- Before signing the agreement, each party must be provided with independent legal
advice from an Australian legal practitioner about:
- The effect of the agreement on their rights; and
- The advantages and disadvantages to that party of making the agreement, at the time the advice was provided.
- Each party must receive a statement signed by their legal practitioner stating that the advice was provided to that party. A copy of the statement must be provided to the other party or their lawyer.
If these conditions are satisfied, the prenup is legally binding and can then be used to hold either party to account in the event of a divorce or separation.
What if I’m already married or in a defacto relationship?
You can still enter into a financial agreement even if you are already married or in a defacto relationship.