Since 2000 couples engaged to be married have been able to enter
into what is known as a pre-nuptial agreement. Such an agreement
provides how in the event of the failure of a marriage, the
property of the parties owned at the time of marriage and property
acquired after marriage is to be dealt with. A pre-nuptial
agreement can also make provision for spousal maintenance payable
in the event that the marriage fails.
Since 1 March 2009 parties who propose to enter into a de facto
relationship, and where that relationship would be the subject of
jurisdiction by a Court under the Family Law Act, can also enter
into the equivalent of a pre-nuptial agreement.
Parties who are already living in a de facto relationship or are
already married, can also enter into such an agreement. Such
agreements can be important where parties to a de facto
relationship decide to purchase a home or an investment
A pre-nuptial agreement between parties to a proposed marriage
has no force or effect if the parties do not marry. A financial
agreement entered into between parties to a de facto relationship
has no force or effect if the parties to the de facto relationship
Both agreements are called, in the Family Law Act
"Binding" financial agreements. This is because there are
limited circumstances in which such agreements can be set aside by
the Family Court or terminated.
The intent of both types of agreement is to provide a simple
means of finalising financial and property issues between parties,
when a marriage or de facto relationship fails and which should not
involve parties in substantial legal costs. Because the agreements
are "binding", careful consideration and drafting of
agreements is essential because, potentially, it might be many many
years after the agreement is entered into that the marriage or the
de facto relationship breaks down. Before binding financial
agreements can be entered into, each party must receive independent
advice and the agreement contain a certificate stating that such
advice has been given.
If you would like advice about the advantages or disadvantages
of pre-nuptial agreements or if you are concerned to ensure that
assets of your child about to enter into a marriage or who is
already living in a de facto relationship are properly provided
for, please contact:
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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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