Binding financial agreement (Pre-nuptial agreement)

About this financial agreement

A prenuptial agreement sets out how assets and liabilities will be divided if you separate permanently or if your marriage ends.

Making a plan in advance should help you avoid expensive divorce settlements, help you keep items of sentimental value such as family heirlooms or property, and help you control who inherits your wealth.

Many people consider planning for break-up unromantic shortly before a wedding or civil partnership. However, preparing a prenup emphasises that the reason for marriage is love and not money, and can give both people confidence about what will happen should the marriage fail.

Why use this agreement

• provides security during and after marriage to both people;
• avoids future disputes over how assets should be split and what each person contributed;
• helps speed up the divorce process and saves divorce costs;
• helps ensure that items with sentimental value remain with the person to whom they matter most;
• helps ensure that the people you choose (such as children from an earlier relationship) inherit your wealth;
• prevents your wealth from being given away shortly before break-up;
• helps protect business assets from being split and sold;
• makes a separation less emotionally stressful by removing the need to negotiate over as many things.

Is a financial agreement legally binding?

Pre nuptial agreements are legally binding in Australia. Prenuptial agreements are enforceable in Australia if they follow the legal requirements of Family Law Act 1975. This agreement is drafted to comply with s90B of the Family Law Act 1975 for couples intending to be married. Australia's family law allows the parties to marriages and de-facto relationships to enter into agreements about what might happen if their relationship ends in a separation. These sorts of agreements are referred to in the law as binding financial agreements. It is the requirement of the Family Law Act 1975 that both parties must receive independent legal advice before signing the agreement. If both parties have failed to do so, then the agreement will not be legally binding.

Alternative documents

We also stock a simpler version of this document that has been written for couples who are likely each to be financially independent before the marriage or partnership and for whom the concern is about ensuring that wealth and assets remain in the possession of whichever one brought them in, should the marriage fail.

We expect that this alternative document will be more suitable for older couples who have already accumulated wealth, and who perhaps are marrying for a second time.

See Binding financial (pre-nuptial) agreement: protection of property

Agreement contents

The Net Lawman pre-marital agreements have been written to help you to comply with the suggested legal requirements.

This agreement covers a very wide range of possible outcomes and also deals with many matters to be agreed during your marriage.

There is extensive coverage of property, possessions, investments.

Children arrangements are covered broadly and shortly, because circumstances at divorce can be very different to those at marriage and a judge will make an order based on what he sees at the time.

This agreement covers the following:

• the parties’ personal details;
• relevant dates and application of principles likely to be required by law;
• ownership of the home now;
• separate ownership of property and possessions;
• many alternative arrangements for ownership of assets;
• joint bank account;
• sharing living expenses;
• children arrangements and after separation;
• property of each party remains his own;
• dealing with family home;
• children arrangements;
• financial support of children;
• financial maintenance of one of you by the other;
• prevention of one person reducing joint wealth before separation by giving away assets;
• dealing with family company and / or jointly owned business;
• capital calculation and transfer;
• promise of confidentiality;
• if one of you should die;
• other legal provisions to protect your interests;
• final statement of understanding of legal requirements.