Prenuptial Agreement

What is a Pre-nup?

Binding financial agreements are commonly entered into prior to marriage. When binding financial agreements are made prior to marriage, they are commonly known as prenuptial agreements. The agreement can cover how in the event of marriage breakdown the financial assets will be divided. The agreement can also deal with spousal maintenance and any other incidental or ancillary matters. Colloquially these agreements are referred to as ‘pre-nup’.

Why should we create a Prenuptial Agreement?

Prenups can protect both spouses in the event of a divorce, speeding up the process and simplifying the division of assets. Furthermore, they can help eliminate future conflict if spouses decide to end their relationship.

Prenups can be more beneficial for individuals who are wealthier than their spouse or expect to receive a large inheritance may also see the value in Prenuptial Agreements. Also, any person with minor children from a previous relationship should consider creating a prenup to protect their children’s property rights.

Are Prenuptial Agreements binding in Australia?

Yes, if executed properly, courts can recognize Prenuptial Agreements and enforce them during a divorce.

There are a number of formalities with which the agreement must comply: 

• the agreement must be in writing;
• it must be signed by both parties;
• it must state that both parties received independent legal advice (and the lawyers must sign a statement to this effect) regarding the effect and operation of the agreement on their legal rights and the advantages and disadvantages of entering into the agreement. A copy of the statement must be given to each spouse;
• the agreement must state that the agreement has not been terminated or set aside by a court; and
• each party must receive a copy of the agreement.

Can I make a prenup if I’m already married?

No, prenups must be created before you are married. If you are already married, you must use a postnuptial agreement. Like prenups, spouses use postnuptial agreements to specify their separate and shared property and outline the division of their assets, in the event of a breakup or death.

Should I sign a Prenuptial Agreement?

Ultimately, no one can tell you whether you should or should not sign a Prenuptial Agreement. Everyone’s circumstances are completely different. If you are unsure about signing a prenup, consult with a legal professional to look over you and your partner’s prenup—before you sign. Discussing your situation with an unbiased lawyer can help protect your interests.