The Nuts and Bolts of Pre Nuptial Agreements

Date: Sep 02, 2010
Document Type: Newsletter

In Australia it is possible to make Pre-Nuptial Agreements under the Family Law Act 1975 (Cth) ("the Family Law Act").

What are Pre-Nuptial Agreements?

Pre-Nuptial Agreements are binding financial agreements concerning how real and personal property is to be dealt with in the event that the marriage breaks down.

In Australia Pre-Nuptial Agreements are referred to as "Financial Agreements" in the Family Law Act and can be made before you get married, whilst you are married or after your marriage breaks down.

What can be included in a Pre-Nuptial Agreement?

A wide range of financial matters can be dealt with in a Financial Agreement including:

  • How, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of the parties at the time the agreement is made, or at a later time prior to divorce, is to be dealt with.
  • The maintenance of either of the parties by the other during the marriage or after divorce.
  • Any other matters.

Are Pre-Nuptial Agreements binding?

In order to make a binding financial agreement it is necessary to satisfy certain requirements set out in the Family Law Act. These requirements include:

  • The financial agreement is signed by the parties.
  • Before signing the financial agreement each party was provided with independent legal advice from a legal practitioner about the effect of the agreement on their rights and the advantages and disadvantages of making the agreement.
  • Either before or after signing the financial agreement each party was provided with a signed statement by a legal practitioner stating that they had received independent legal advice on the effect of the agreement on their rights and the advantages and disadvantages of making the agreement.
  • A copy of the statement of independent legal advice is provided to the other party.
  • The financial agreement has not been terminated or set aside by the Court.

Do I need legal advice before signing a Pre-Nuptial Agreement?

Yes. Anyone contemplating signing a financial agreement under the Family Law Act is required to have independent legal advice on the effect of the agreement on their rights and the advantages and disadvantages of entering in the agreement.

If you enter into a financial agreement without legal advice then it will not be considered a binding financial agreement and in the event that the marriage breaks down your property will be dealt with in accordance with the property division rules in the Family Law Act.

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