Nobody gets married with a view to getting divorced later in life. As such, the benefits of prenups are easily dismissed in the lead up to a marriage. There is an old saying that is applicable here: “Nobody plans to fail, but many fail to plan”. Putting a prenup in place is simply risk management, for your life. Prenups are a safety precaution that becomes even more relevant when you consider that every third marriage in Australia ends in divorce (ABS).
What is a Prenuptial Agreement (Prenup)?
In Australia, a prenuptial agreement is referred by the Family Law Act as a Binding Financial Agreement (BFA). A prenup is a legally binding financial agreement between two people who are meaning to get married (a similar agreement can be prepared if two people are planning to live together in a de facto relationship).
A prenup records what assets and debts each person brings into the relationship and states what will happen in the event that the relationship breaks down (separation or divorce), and how the couple’s finances will be divided.
What makes a Prenuptial Agreement legally binding in Australia?
- Prenups must comply with strict legal guidelines as outlined in the Family Law Act (1975).
- They must be in writing.
- Each person must have received independent legal advice before signing the prenup.
- The legal advice provided must have come from a lawyer in the Australian jurisdiction.
- Each person must have signed the prenup voluntarily (free from coercion, duress or undue influence). This means one person cannot tell the other that they will not marry them unless they sign a prenup.
- The prenup should contain a complete disclosure of each person’s financial standing.
What are the benefits of Prenuptial Agreements?
- Facilitate Separation or Divorce – Prenups facilitate a swift and smooth separation or divorce by preventing contentious disagreements.
- Minimise Costs – Separations and divorces can be quite costly, especially when one or both parties has a high financial standing and the relationship has ended on bad terms. The cost of a separation or divorce rises with contentiousness. A prenup will significantly reduce the associated costs.
- Minimise Acrimony – Prenups often work to reduce acrimony between the two people involved. Prenups have the potential to allow both parties to end the relationship amicably, on better terms.
- Protection – Prenups provide protection of valuable assets, including premarital property, family heirlooms and businesses owned.
- Clarity & Certainty – A prenup provides both parties with complete clarity and certainty on the events that will unfold should the relationship breakdown. This means less confusion when it comes to making decisions about the future of the relationship.
- Strengthen Relationship – Prenups have actually been shown to strengthen current relationships and make separation and divorce less likely. This occurs because a prenup forces the couple to have important discussions about their future, providing both parties with a clear understanding of the other’s intentions and thus increasing the chance of a successful and peaceful marriage.
Are Prenuptial Agreements always enforceable?
- No. For a number of reasons prenups are often overturned by the Court. Common reasons of agreements can overturned are:
- Children – If an agreement does not provide for circumstances relevant to future children, it may be set aside.
- Non-disclosure – If a party does not disclose the full extent and value of their assets at the time when the prenup was drafted and signed it may be set aside.
- Unreasonable Pressure – If a party unreasonably pressures or coerces the other party into signing the agreement it may be set aside.
- Last Minute Decision – If a party requires the other to sign the agreement shortly before the wedding as a condition of the wedding continuing it may be set aside.
- Unfairness – If an agreement is not just and equitable (fair) it may be set aside.
Collaborative Practice and Prenuptial agreements
We recommend that you approach prenuptial agreements in a collaborative manner. In order to create a prenuptial agreement, each party requires a lawyer in any event, and we recommend that we also enlist the services of a family consultant and a financial neutral, to explore both parties’ future expectations, plans and needs fully when considering a prenuptial agreement.
A collaborative approach ensures that all parties needs are fully considered and taken into account and everything is brought out onto the table in a safe and supportive environment. The professionals can help ensure that all of the difficult issues are considered and resolved, helping to put the relationship on a much stronger footing.
If you are interested in learning more about collaborative practice with prenuptial agreements and whether it could work for you, contact us on 6389 0305 or 0417 091 960.