The Family Law Act divides binding financial agreements, rather prosaically, into financial agreements occurring before, during and after marriage. The main of these is more in modern language termed as a prenuptial agreement.
Prenuptial agreements are generally thought to be the sole acumen of multi-millionaires aiming to protect their fortune from gold-diggers. But of course, it can do just that: there’s little reason to warrant giving away half of the investments you owned prior to the marriage. The truth, however, is that prenuptial agreements can be a sensible and prudent investment for the two of you.
Of course, in the unhappy situation your marriage fails, would you rather the conversation concerning the division of your investments occur when you both love each other, or afterwards?
Hence, the prenuptial agreement helps both of you to take care of the property (whether real or private) that you most value. It’s also possible to use it to determine how the two of you will be handled following your marriage: whether protection is to be settled, and the amount. Or, it could bother who gets the family dog or cat, since it’s not easy to split a dog.
Basically, the prenuptial agreement inhibits either party signing up to the Family Court over a topic that the agreement protects. This minimizes legal fees, court fees and your time.
How Can You Develop a Binding Prenuptial Agreement?
Compared with standard contracts, prenuptial agreements have very distinct forms that have to be followed. It’s really to make it simpler for these agreements to hold up in court. The precise necessities are listed in section 90G of the Family Law Act, but commonly:
1. the agreement has to be written. An oral agreement won’t be enough. However this is as they’re quite intricate documents, and specificity is necessary;
2. both sides must acquire independent legal advice from a legal practitioner. This advice must tell each of you what the agreement means for you, in terms of your rights, and the benefits and downsides of the agreement. It is recommended that you get these suggestions on paper;
3. the agreement must contain a clause revealing you have each provided such advice;
4. a signed certificate from the legal practitioner attesting to these suggestions must be associated to the agreement;
5. each party must sign the agreement; and
6. each party must have the original, or a copy of the main prenuptial agreement.
However, even when these steps have been completely fulfilled, prenuptial agreements – like all financial agreements – are not a guarantee. There are instances in which they can be overturned, and as a result, it is recommended you have a lawyer draft the prenuptial agreement for you, or at the least, get them suggest for you over the process. A brief list of a few of these situations includes where:
1. Any of these formal steps haven’t been achieved;
2. Either party neglected to show, or obscured or materially misrepresented the scope of their investments and resources at the valuable time the agreement was signed;
3. Either party involved in fraud in receiving the agreement, or put into the agreement to defraud the other, or a third, party;
4. Either party involved in underhanded behaviour in getting their partner to sign the prenuptial agreement;
5. The agreement is impracticable, indefinite, not yet determined, or is otherwise struggles to be performed;
6. A change has occurred relating to a child which will cause that child to suffer hardship.
Your legal practitioner will also be able to tell you of any potential problems with the agreement. One example is, section 90F overturns any clause that purports to prevent protection payments if one of the parties is not able to financially aid themselves when they signed the agreement. Or, the entire prenuptial may be void if you fail to show the full extent of your investments, or the agreement is doubtful and vague, or there was underhanded or deceitful behaviour associated.
Do Prenuptial Agreements Last Forever?
Well, yes and no. By their nature, prenuptial agreements do persist, even beyond the death of either party. You can establish distinct terms and conditions for what occurs in the situation of your death, but generally, your belongings will be left to your heirs and not your partner.
Even so, that doesn’t mean prenuptial agreements cannot be changed if circumstances change, or you both want to get a new agreement in some way. You and your spouse, as the parties to the agreement, have every right to replace the agreement if, and when, you so choose. Just don’t forget that you need to properly stop or revise your prenuptial agreement.
Your legal practitioner can advise you of all of these intricacies when you receive advice on a prenup agreement. This will help ensure it is binding, and supply the important safety measures to both of you should the relationship fall apart. For more information, visit our prenuptial agreement website
Prenuptial Agreement 