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Pre Nupital Agreements
Pre nuptial agreements are literally agreements made between parties prior to their marriage.
Pre nuptial agreements are made by people who are intending to marry and are often made shortly before the date of marriage. If parties have no intention of marrying, then such agreements would normally be referred to as a defacto agreement or cohabitation agreement. The format of such cohabitation agreements may vary depending on what State or Territory the parties reside in.
A pre nuptial agreement is a written agreement between a prospective husband and wife as to how they propose to deal with each other both during the marriage and in the event of a separation at least so far as financial matters are concerned. The agreement will usually provide how the parties propose to operate in respect of financial matters, as well as often providing what should occur in the event of the marriage breaking down including how specific assets are to be divided.
Traditionally, these agreements were common place and indeed, essential as the law in the 19th century was that the husband had control over his wife’s assets in the absence of such agreement. In more recent times, pre nuptial agreements have again become more popular, particularly since the Family Law Amendment Act 2000 (which took effect from 27 December 2000) provided for pre nuptial agreements (Financial Agreements) to be fully enforceable in the Family Court of Australia provided certain conditions are met by the parties to the Agreement.
In fact, the Act allows for Financial Agreements prior to marriage (Family Law Act 1975 - Section 90B) after marriage (Section 90C) and even after separation (Section 90D).
To ensure that your pre nuptial agreement complies with the Family Law Act 1975 you should:
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Make the agreement in writing.
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Make the agreement before your marriage and in contemplation of that marriage.
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The agreement must be signed by the parties.
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The parties’ signatures must be witnessed by an authorized person.
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Both parties are required have independent legal advice prior to entering into the agreement, and must evidence that by providing Certificates signed by a legal practitioner.
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The agreement must relate to specified property of the parties. The property can be in specific terms (eg, the Holden motor vehicle registration XY 123) or in general terms (eg, any motor vehicle owned by George).
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The agreement needs to make it clear that it is intended by the parties that the property dealt with in the agreement is not to be made the subject of the property orders subsequently by the Family Court.
If it is your intention that, in the event that the marriage is unsuccessful, you want the Family Court to enforce the terms of the agreement, then it is essential that both parties comply with the terms of the agreement during the marriage.
Under what circumstances should I consider signing a pre nuptial agreement?
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If you are a business owner and want to maintain control of that business in the event of separation;
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You have significant assets;
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You have considerably more assets than your partner;
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You have children from a previous marriage and you want to be sure that the family wealth passes to them;
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You may be giving up a lucrative career and want protecting in the event of separation;
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You have a family member who has special needs, i.e. disabled child;
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You want certainty in respect of your financial position in the event of separation;
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You are concerned about a significant debt that one of you I bringing to the marriage
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