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

About this financial agreement

Nobody enters into marriage or civil partnership expecting it to end. However, all relationships change over time, usually in circumstances that no-one can foresee. Sometimes it is prudent to plan for the worst in the expectation that it won't occur.

This simple pre-marital agreement states that each party will retain the assets, property and possessions he and she each owned when he and she entered into marriage. It has been written for couples for whom financial support from the other is less important, perhaps because the partners have already accumulated enough wealth during their lifetimes to support themselves independently. The document seeks to protect ownership of that wealth, not to ensure one is supported by the other.

Of course, the agreement does provide for assets jointly bought, full disclosure and other elements crucial to acceptability by a court.

Why use this prenuptial agreement

• provides security during and after marriage to both people;
• avoid future disputes over how assets should be split and what each person contributed;
• saves legal costs;
• 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 many things.

Is a prenuptial 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 another Binding financial agreement (Pre-nuptial agreement) which covers a much wider range of possible outcomes and which also deals with matters to be agreed during your marriage.

That alternative version enables you to define your intentions over broader areas. There is extensive coverage of property, possessions, investments.

Children arrangements are included, but 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.

Agreement contents

This agreement covers the following:

• the parties’ personal details;
• relevant dates and application of principles likely to be required by law;
• that property of each party remains his own;
• prevention of one person reducing joint wealth before separation by giving away assets;
• what should happen if one of you should die.