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What Does a Prenuptial Agreement Involve and Other Common Prenup Questions

 If you are about to be married, you and your partner may be thinking about a Prenuptial Agreement. 

A Prenuptial Agreement is an agreement between parties prior to marriage. Couples are able to enter into Prenuptial Agreements (also known as Financial Agreements, Binding Financial Agreements or simply ‘prenups’) to provide for the division of property upon separation. 

These agreements are particularly popular with people who are entering a second relationship or marriage. They are also a popular choice when there is a desire to quarantine an inheritance or gift from family. These agreements can be a very useful tool in family businesses and succession planning.

Under Victorian law, very strict legal requirements must be followed for a Prenuptial Agreement to be enforceable. 

 

What Does a Prenuptial Agreement Cover?

Prenuptial Agreements can deal with property division and also spousal maintenance. They can take into account anticipated changes, such as children being born and the length of a marriage, by providing for different asset splits depending on how long the marriage lasts, how big the asset pool is, or how many children are born to a couple.

Can We Get a Prenuptial Agreement if We’re Already Married?

You can, but it often works in your favour to have the agreement drawn up prior to getting married.  Couples who are already married may enter into a Binding Financial Agreement that provides for how assets are to be divided if the marriage later breaks down. 

Can De Facto and Same Sex Couples Get Prenups?

Whilst de facto couples in Victoria are not governed by the Family Law Act, there is a state law in Victoria that enables them to enter into binding agreements known as Relationship Agreements, which have the same effect as Prenuptial Agreements do for married couples. 

Can Prenuptial Agreements and Financial Agreements Be Set Aside?

Definitely. It is expected many will be set aside and some already have in the short time they have been around. The Family Court has powers to set aside Financial Agreements where either they technically don’t comply with the Family Law Act or there has been fraud, undue influence or non-disclosure at the time the Agreement was made. 

The Court can also set aside a Financial Agreements if there is a material change in the welfare of the children and it would cause a hardship to enforce the strict terms of a Financial Agreements.

Where Can We Get More Advice About Prenups?

If you and your partner are considering a Prenuptial Agreement, it is critical to obtain expert family law advice, as the Family Court will set an agreement aside that does not comply with the Family Law Act. 

Book an appointment with our experienced family lawyers at Robert Wood and Associates for more information about prenups and confidential advice. Call our office on (03) 9762 3877 or simply contact us online and speak to one of our family lawyers about your needs. Our family law solicitors will be happy to assist.

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