Pre-Nuptial Agreement - Australia Matrimonial Solicitors
Since December 2000, it has been possible to make a binding legal agreement about the financial arrangements in case of marriage breakdown. These agreements are called 'prenuptial agreements' or 'financial agreements'.
Why have a pre-nuptial agreement?
Any person who wants property divided by a different means to that determined by a Court (pursuant to the Family Law Act) will benefit from a pre-nuptial agreement.
Pre-nuptial agreements are common where one person brings more assets to the marriage than the other person, or where one wants to keep their pre-marital assets separate from assets that are acquired during the marriage.
Some people simply prefer to have certainty as to how their assets will be distributed in the event of a marriage breakdown. Also, more assets are likely to be preserved to family members if the divorce is settled through a pre-nuptial agreement rather than through costly litigation.
When can I make a pre-nuptial agreement?
You can make a financial agreement before, during or after a marriage. Pre-nuptial agreements are best discussed with a lawyer well before walking-down the aisle.
What should be included in the pre-nuptial agreement?
These agreements can cover :-
- financial settlement/property division after the marriage
- financial support (maintenance) of one spouse by the other after the marriage
- any incidental issues
De Facto and Same Sex Couples
Amendments to the Family Law Act which came into effect on the 1st March 2009 now make it possible for all couples to make a pre-nuptial agreement, whether they be defacto, same sex de facto, or married.
How can I ensure that our pre-nuptial agreement is legally binding?
For a pre-nuptial / financial agreement to be legally binding, you must both have :-
- signed the agreement and
- received independent legal and financial advice before signing
The Court can declare the agreement invalid if :-
- these conditions are not met or
- fraud is involved
- the agreement was entered into for the purpose of defeating a creditor
- circumstances have changed making the agreement impracticable to be carried out
Legal Advice
That is why it's important to seek legal advice. A lawyer can assist you in preparing a legally binding document. A solicitor can provide you with advice about the law and its impact on your agreement to enable you to make an informed decision to enter the agreement or not.If you decide that a pre-nuptial agreement is right for you, a solicitor can draft an agreement that complies with legislative requirements. If you would like free initial advice on the telephone, just complete and send the contact form or email our offices. If after talking to us you decide to proceed no further, you will not be charged for our advice.