This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

Prenuptial Agreements


Every couple contemplating marriage or a de facto relationship should consider drawing up a prenuptial agreement, which in Australia is called a Binding Financial Agreement. Even a couple that is already married can make a post-nuptial agreement to set out how assets will be divided in the event of relationship breakdown. While a prenuptial may seem unromantic, the process of articulating expectations may well strengthen a relationship in the long run. Sections 90B through 90KA of the Family Law Act 1975 governs the financial agreements between married parties, with sections 90UA through 090UN pertaining to de facto couples, including same-sex couples. This Act governs all of Australia except Western Australia, where prenuptial agreements between de facto partners are governed by the Family Court Act 1997 (WA).

What is a Prenuptial Agreement?

A prenuptial agreement is a legally binding contract between a couple that plans to live together either in a de facto relationship or as a married couple. The agreement usually mandates how the finances of the couple will be divided if the relationship breaks down through separation or divorce. The agreement can cover cash, property, investments, superannuation and pension entitlements and stipulate who is responsible for shared liabilities and debts. A prenuptial agreement can also take account of future considerations such as how childcare impacts the division of income and assets.

The Legal Effect of Prenuptial Agreements

A prenuptial agreement is only binding if it is written according to strict criteria; otherwise, the Family Court can overturn it. One of the most important conditions is that the couple has a full understanding of their legal rights, and both parties to the agreement have received independent legal advice. The legal counsel must write a statement outlining the rights of their client, the respective advantages and disadvantages of the agreement, and stipulate that the provisions are fair and equitable. This statement is then attached to the agreement. All parties, including the couple and their lawyers, must sign the agreement to ensure it is valid.

A prenuptial agreement is binding not only in the event of separation and divorce but also upon the death of a spouse. In accordance with section 90H of the Family Law Act, the agreement is enforced on a deceased estate.

Who Should Get a Prenuptial Agreement?

All couples should plan their financial future together, including having a plan for the end of a relationship. There are also instances when it is highly recommended to have a prenuptial agreement in order to protect the parties involved. If it is the second marriage of a person who already has children, a prenuptial agreement can be used to protect the inheritance of children from the earlier relationship. When one spouse has a significantly larger net worth than the other spouse, it is sensible to safeguard that wealth. A prenuptial will also protect a family business that might otherwise be forced to liquidate in the event of relationship breakdown.

The Benefits of a Prenuptial Agreement

A prenuptial agreement brings certainty, finality, and security. There is greater privacy in a prenuptial agreement, as compared to a court battle, as a prenuptial agreement is negotiated between the parties. There can also be significant tax benefits to a prenuptial as it takes on the same status as a court order, and savings on Capital Gains Tax and state transfer duty may apply in some cases.

Children

Any clauses concerning children in a prenuptial agreement should be written with careful consideration. These provisions can reference children that the couple already has at the time of the marriage, and possible future children from the relationship. Even if the couple is not sure whether they intend to have children, they should still make provision for children in the agreement.

The Family Law Act states that a prenuptial can provide for child support, but only for children already born that can be named in the agreement. A court can overrule any arrangement for child support in a prenuptial agreement if they find that it is contrary to the best interests of the child.

Can a Prenuptial be Overruled

In fact, the Family Court can overturn any provision of a prenuptial agreement. For example, the court may find that there has been a material change to the couple’s circumstances that was not provided for in the agreement (such as the birth of a child). A court may also determine that the agreement does not meet legal requirements (such as the parties not obtaining independent legal advice) or that there was fraud or unconscionable conduct in the making of the agreement. If the court discovers that the agreement was flawed, it can award damages or terminate the agreement.

Armstrong Legal’s family law experts can help you to draw up a prenuptial agreement. Please contact Armstrong Legal on 1300 038 223 or email us to make an appointment.

WHERE TO NEXT?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

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