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Prenuptial Agreements

The vast majority of Australians don’t consider the benefits of a prenuptial agreement (Prenup) because we are not planning for a relationship to fail.

What is a Prenup

A prenuptial agreement is a binding financial contract between a couple that outlines how their property and assets will be split if the relationship breaks down.

The document protects couples in cases of divorce and separation and can also survive the death of a partner, making it binding upon the legal personal representative of the Estate.

When can a prenup be made?

A prenup can be made before, during or after a relationship and it doesn’t matter whether it is a marriage, de-facto or a same-sex relationship. Some of the assets that can be protected include:

  • Cash
  • Real Estate
  • Family Business
  • A Trust
  • Investments
  • Entitlement to an inheritance
  • Superannuation
  • Pension Entitlement

You should consider a prenuptial agreement if:

  • one partner has much more property than the other when the relationship began
  • one person is entitled to an inheritance, or may later become, entitled to an inheritance or gift
  • you are moving into another relationship where children from your former relationships might need to be protected financially
  • you both want to be upfront about the division of assets and avoid ending up in the Family court.

Is it legally binding?

In order for a prenuptial agreement to be legally binding, it has to meet a set of strict criteria. Otherwise, it can be overturned by the Family Court. The agreement must also include evidence that both parties received independent legal advice. This comes in the form of a statement from a lawyer outlining:

  • The effects of the agreement on the rights of the party.
  • The advantages and disadvantages to the party making the agreement.
  • Whether or not it was necessary for the party to make the agreement.
  • Whether the provisions in the agreement are just and equitable.

We understand that discussing a prenuptial agreement might not be the most romantic way to start your marriage or relationship.

The unfortunate reality is that many relationships don’t go the distance and your prenuptial agreement could very well be the most important document you ever sign.

Further information or assistance

Contact our Family Lawyer for further information about prenuptial agreements.