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Prenuptial Agreements In Australia

By 1 October 2013Family Law

What to know about getting married in Australia?

It takes a lot of planning to get married. Aside from the usual preparations to keep the wedding special, you also need to comply with the legal preparations such as gathering the relevant identification that you are at least 18 years of age, showing that you have no impediment to marry, submitting a  Notice of Intended Marriage (NOIM) and several other requirements. Not many think beyond the preliminaries and almost nobody anticipates the potential unfortunate end.

What is a Prenuptial Agreement?

Prenuptial agreements are Binding Financial Agreements created prior to marriage. Such agreements became enforceable in Australian in the year 2000, following the enactment of the Family Law Amendment Act 2000.

What is Post Nuptial Agreement?

Another form of Binding Financial Agreement is the Post Nuptial Agreement which is formed after marriage. It operates the same way with Pre Nuptial Agreements except that the creation of the agreement happened after marriage. Basically, the essence of Binding Financial Agreements is to protect the financial assets of partners that were brought to the relationship.

Both agreements are enforceable in the Family Courts of Australia. The agreement comes into effect as soon as separation takes place and are designed to help people decide how to will deal with their assets in the event of separation at some point in the future.

The subjects of Binding Financial Agreements

Since December 2000, parties who intend to get married can enter into a Prenuptial Agreement as the preferred way of dividing assets outside the prying eyes of the courts. This is now recognised in all States of Australia except in New South Wales, which is governed by a State law that allow couples to enter into a binding document called a Domestic Relationship Agreement that has the same effect as Prenuptial Agreements.

Prenuptial Agreements will cover matters that deal with the division, management and treatment of the couple’s assets in the event the marriage is terminated. The provision of the contract will include the following:

  • Division of property;
  • Spousal support in the event of divorce, death of one of the spouses, or breakup of marriage;
  • The terms for the forfeiture of assets as a result of divorce;
  • Guardianship;
  • Child support, however the couple is required to register their agreement for support with the Child Support Agency; or
  • Any other conditions that are deemed proper to be the subject of the agreement.

Provisions regarding spousal or child maintenance must specify the name of the spouse or child who will receive the maintenance, and the amount that each one will receive.

Considering a prenuptial agreement? Seek professional help!

Financial agreements can be extremely complex. Compliance with the requisites and conditions set forth in the Family Law Act is crucial for its validity.

If you are considering entering into a binding financial agreement (Pre Nuptial Agreement, Post Nuptial Agreement or Separation Agreement) or seek to set aside an existing one, you should seek independent legal advice.