It pays to be smart and think ahead, even when it comes to love. That’s why more and more Australians are getting prenuptial agreements when they enter a relationship or before they get married.
But unfortunately, there are a few common problems with prenuptial agreements that can see them disregarded, set aside, and thrown out in family court. To make sure you don’t make the same mistakes, we’ve taken a closer look.
What is a prenuptial agreement?
A prenuptial agreement, otherwise known as a binding financial agreement, is a legally binding financial document that sets out how the assets of each person in a relationship or marriage will be allocated in the event of a breakup or divorce. They’re often used by those with significant wealth or high-value assets – or couples who want to minimise the cost and stress of dividing assets if the relationship ends.
The document must be signed and agreed upon by both parties and prepared by a qualified, experienced legal expert. Examples of what can be listed in a prenuptial agreement include: businesses, cash, investments, residential or commercial property and high-value assets such as cars and boats.
Such an agreement can be entered into at any time leading up to a breakup or divorce – and can be a great way to avoid the emotionally draining and expensive court battles that can sometimes occur when dividing assets.
Common problems with prenuptial agreements
Unfortunately prenuptial agreements aren’t always bullet proof. If they’re not prepared correctly by a qualified and experienced family law expert they can be disregarded by the family court for various reasons.
If that happens your property may be divided differently than what was set out in your binding financial agreement – which can cause financial loss and significant stress. Common problems that can lead to prenuptial agreements being disregarded include:
- The prenuptial agreement was signed under duress. This can include one partner threatening not to continue with a marriage or relationship if the other does not sign.
- One party did not fully disclose assets when the agreement was created and signed. This could mean hiding property, cash, investments or any other assets with financial value.
- The agreement does not make provisions for children conceived within the marriage or relationship (or children under the care of both partners).
- Both parties did not receive independent legal advice as to the advantages and disadvantages of entering into the agreement, and the effect of the agreement on their legal rights
To avoid such problems it’s important that both parties get independent legal advice from an experienced family law expert before entering into an agreement. This legal advice must be obtained from a lawyer in the Australian jurisdiction and be revisited if either party’s circumstances change significantly.
Getting advice from an experienced family lawyer
Advice on your prenuptial agreement can’t come from just anyone. It’s important that you find a family lawyer with extensive experience advising on and preparing prenuptial agreements to give yours the best chance of success.
Testart Family Lawyers are Melbourne legal experts with decades of experience in all aspects of family law – including prenuptial agreements. If you think you may need a prenuptial agreement contact us to book your free first appointment and we’ll provide the honest expert advice you need.