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Pro Pre-Nups? A View from Our Divorce Lawyers

divorce lawyer sydney

Divorce lawyer Sydney tell all you need to know about a pre-nuptial agreement

We often here of the term “pre-nup” where ever Hollywood stars are concerned.

Better known in Australia as a Financial Agreement, a pre-nuptial agreement (pre-nup) is traditionally a legally binding agreement signed and sealed by a couple. Under the law, a marriage bears the same similarities as a contractual agreement. For this reason these agreements may provide peace of mind.

Pre-nup agreements also work in favour of couples who have children from previous marriages. In this, they can ensure that they inherit the value of assets they may have accumulated prior to the second marriage.

The Fine Line Between Pre-Nup and Trust

Misconceived as a “back-up plan” pre-nups can cause tension amongst individuals. However it can also be seen as trust-building. This is due to the fact that both parties are required to disclose confidential information.

According to part VIII A of The Family Law Amendment Act 2000 a pre-nup must be drafted either:

  • Before a marriage
  • During a marriage
  • After a marriage
Before a Marriage
A pre-nup make provisions for how property/assets will be divided. This is only the case if the relationship dissolves.
During a Marriage
Even during a marriage an agreement can be drafted. This is in accordance with section 90C of The Family Law Amendment Act 2000.
After a Marriage
Further, pre-nups can be drafted after a marriage. Following the granting of a decree nisi to a couple who has filed for divorce, a pre-nup establishes the ground rules for how assets will be divided.

In order for either of the three types of Financial Agreements to be binding, each must:

  • Have the signature of both parties
  • Hold a statement that both parties have sought legal advice
  • Still be valid by law
  • Have two copies- the original given to one party and a copy given to the other party

Pre-nups also extend to de-facto and same-sex couples.

How do you decide if you need a pre-nup or not?

Many couples may, at some point or another, deliberate if they would like to enter into a pre-nuptial agreement or not.

The better instances to enter into a pre-nup include:

  • when there is an inheritance one party may soon be entitled to
  • if one party has a great deal of assets
  • to decide on an outcome in advance.

In the event of a dissolution, a pre-nup avoids future formalities. This includes court proceedings and any complications. Further, pre-nuptial agreements also provides prior settlements of alimony or spousal maintenance.

Pre-Nups For and Against:
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Why does a lawyer need to draft a pre-nup?

Having a lawyer present is crucial before entering into an agreement. As dealing with property, assets and valuables, the binding agreement ensures enforceability and justice. This should be in the presence of an attorney.
To find out more about entering into a pre-nuptial agreement, contact our staff at info@prominentlawyers.com.au
The comments in the article are general in nature and should not be relied upon as a substitute for professional advice. Anyone intending to apply the information contained in this newsletter should seek their own professional advice to independently verify their interpretation and the information’s applicability to their particular circumstances. This article is issued as a helpful guide to clients and for their private information. Therefore, it should be regarded as confidential and not be made available to any person without our prior approval.

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