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 informally referred to as a prenuptial agreement. Prenuptial agreements tend to be thought to be the only purview of multi-millionaires aiming to provide protection to their fortune from gold-diggers. But of course, it can do just that: theres little reason to warrant giving away half of the possessions you owned prior to the marriage. The truth, even so, is that prenuptial agreements can be a sensible and prudent investment for both sides. Naturally, in the less fortunate situation your marriage breaks down, would you rather the debate concerning the division of your resources occur when you both love each other, or afterwards?
Consequently, the prenuptial agreement lets both of you to safeguard the exact property (whether real or private) that you most care about. It’s also possible to use it to determine how both of you will be treated after the marriage: whether assistance is to be paid, and just how much. Or, it could bother who gets the dog or cat, since its hard to split a dog. Fundamentally, the prenuptial agreement helps prevent either party signing up to the Family Court over a topic that the agreement covers. This cuts down legal fees, court fees and your time.
How Will You Produce a Binding Prenuptial Agreement?
As opposed to common contracts, prenuptial agreements have very distinct forms that have to be implemented. It’s to make it simpler for these agreements to hold up in court. The distinct demands are indexed in section 90G of the Family Law Act, but commonly:
1. the agreement must be written. An oral agreement wont be enough. It’s as they are quite advanced reports, and specificity is critical;
2. the two of you must receive independent legal services from a legal practitioner. This advice must tell you both what the agreement means for you, with respect to your rights, and the rewards and downsides of the agreement. It is suggested that you obtain these suggestions on paper;
3. the agreement must contain a clause stating you have each gathered such advice;
4. a signed certificate from the legal practitioner attesting to this advice must be affixed to the agreement;
5. each party must sign the agreement; and
6. each party must have the main, or a copy of the main prenuptial agreement.
On the other hand, even when these steps are already satisfied, prenuptial agreements – like all financial agreements – are not a guarantee. There are circumstances in which they can be overturned, and therefore, it is important you have a lawyer draft the prenuptial agreement for you, or at the very least, have them help you through the entire course. A brief list of some of these situations includes where:
1. Any of the above formal steps have not been achieved;
2. Either party failed to disclose, or obscured or materially misconstrued the degree of their property and resources at the time the agreement was signed;
3. Either party active in fraud in receiving the agreement, or entered into the agreement to defraud the other, or a third, party;
4. Either party engaged in unethical behavior in getting their partner to sign the prenuptial agreement;
5. The agreement is impracticable, vague, not yet determined, or is otherwise struggles to be carried out;
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 show you of any potential issues with the agreement. By way of example, 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 unclear and indefinite, or there was underhanded or deceitful behavior involved. Do Prenuptial Agreements Persist Forever? Well, yes and no. By their nature, prenuptial agreements do last, even past the death of either party. You can set distinct conditions for what happens in the event of your death, but normally, your belongings will be left to your heirs and not your spouse. Then again, that doesnt mean prenuptial agreements cannot be changed if issues change, or you both want to get a new agreement for some reason. 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 end or revise your prenuptial agreement. Your legal practitioner can help you of all of these intricacies when you undergo advice as to the financial agreement. This will help ensure it is binding, and provide the necessary protection systems to the two of you should the relationship fall apart.
Finding a way to choose a prenup agreement? Learn how to prepare a binding financial agreement that is suitable and flexible for both parties today.