Pre Nuptial 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:
1. Make the agreement in writing.
2. Make the agreement before your marriage and in
contemplation of that marriage.
3. The agreement must be signed by the parties.
4. The parties' signatures must be witnessed by an
authorized person.
5. 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.
6. 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).
7. 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.
The decisions you make about your financial arrangements
are obviously very important decisions. The AussieLegal Pre
Nuptial Agreement Kit will tell you what you need to know
to enable you to draft a pre nuptial agreement.
Your draft agreement must then be taken to your solicitor,
and the other party must also see their solicitor to be reviewed
and certified before signing.
Under what circumstances should I consider signing a pre
nuptial agreement?
- If you are a business owner and want to maintain control
of that business in the event of separation;
- You have significant assets;
- You have considerably more assets than your partner;
- You have children from a previous marriage and you want
to be sure that the family wealth passes to them;
- You may be giving up a lucrative career and want protecting
in the event of separation;
- You have a family member who has special needs, i.e. disabled
child;
- You want certainty in respect of your financial position
in the event of separation;
- You are concerned about a significant debt that one of
you I bringing to the marriage
Disclaimer:
No investment advice provided to you.
This web site is not designed for the purpose of providing
personal financial or investment advice. Information provided
does not take into account your particular investment objectives,
financial situation or investment needs.
You should assess whether the information on this web site
is appropriate to your particular investment objectives, financial
situation and investment needs. You should do this before
making an investment decision on the basis of the information
on this web site. You can either make this assessment yourself
or seek the assistance of any adviser.
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