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Should I enter into a prenuptial agreement?

Monday, 25 March, 2019

Prenuptial agreements, according to authors Katherine Stoner and Shae Living, date back to ancient Egyptian times. For at least 2,000 years, they have been used as a way for couples to document how their finances will be divided should they ever separate, including property that they may not yet have acquired.

The couple may also enter into this type of Agreement with one or more other people. An example of when this may occur is when a parent gifts their adult child money to help buy a home, but the parent does not intend for their child’s spouse to benefit in any way from this gift, in the event of a separation.

In modern Australian times, prenuptial agreements are known as “Financial Agreements Before Marriage” and are regulated by the Family Law Act 1975 (Cth). It is vital that both parties adhere strictly to the requirements as they apply to these types of agreements. When they do so, their property at separation is most likely to be divided as they originally intended when they entered into the contract. In contrast, failure to comply with the stipulations in the Family Law Act will most probably result in the Agreement failing to oust the jurisdiction of the Family Law Courts. In this instance, the parties’ assets at separation will most likely be distributed in accordance with the decision of the Court, rather than as the parties intended.

For a prenuptial agreement to be binding, both parties must receive independent legal advice about the advantages and disadvantages of entering into such a contract, and their rights and entitlements under the Family Law Act. Each party must also make full and frank disclosure to each other of all their significant assets and financial resources.

If you are contemplating entering into this type of contract before marriage, contact Bruce Legal and make an appointment to speak with one of our experienced family lawyers.