Prenuptial Agreement - What is a Prenup?

It’s not the 1950s. In Australia two generations ago divorce was rare and no one knew what a prenup  or pre-nuptial agreement was. You married in your early 20s, had 2.8 kids, and usually you stayed married, till death do us part.

Society has changed and doesn’t plan your married life any more. Marriage isn’t seen as permanent, getting a divorce is comparatively easy, and there’s little social stigma in going through two, three, or more marriages with children from each of them


People going into a marriage today may need to consider more complicated issues. They may wish to protect their existing children, they may have parents who need care or they may simply understand the statistical reality that, today marriages are fairly short-term affairs. They hope for and work towards the best future together, but they use a prenuptial agreement to insure anyway.

Section 90B of the Family Law Act 1975 refers to Financial Agreement before Marriage. Commonly known as a prenup, premarital agreements, or prenuptial contracts, they are most commonly used to protect the assets of the wealthier party in the event of a marriage break down.

Contrary to popular opinion, a prenup is not just for the rich and famous. As it is now a very affordable  solution, increasing numbers of less famous couples are opting for a written agreement to protect the financial assets each partner brings to the relationship.

A Financial Agreement is the method Parliament has set up for you to protect the assets you take into a marriage by predetermining how those assets should be dealt with, if the marriage fails.


A Prenuptial Agreement made under section 90B is a substitute for court action and means that before marriage the parties have negotiated a settlement of their family issues should the marriage end. This means that, at least insofar as they concern money and possibly child maintenance issues, the couple has resolved its issues in advance without needing the court to impose a solution.

For example. An engaged couple with children from prior marriages may use a prenup to spell out what will happen to their property when they die. This means they can pass on separate property to their children and still provide for each other if need be. Without a prenuptial financial agreement in place, a surviving spouse might have the right to claim a large portion of the other spouse's property, leaving much less for the children.

 

Couples often use these agreements to protect the assets of either partner from debts incurred by the other, or if one party is at risk of being sued.

 

Lets look at an example;

Julie and Alan are both in their late 40s and about to be married, each for the second time. Julie is a financial adviser who has two teenage children. Alan is a builder who has a six- year-old daughter. Each of them owns a home. After they marry, they plan to rent out Alan’s house and live at Julie’s place. Both Julie and Alan want to protect their property from the other person’s debts. Although Julie's business is quite successful, she and Alan want to be sure that there will not be any caveats placed against Alan’s home if a disgruntled investor sues Julie, or if her business runs into financial troubles. They are equally concerned about protecting Julie’s assets and income from Alan’s business debts and any child support obligations to his ex-wife.

Alan and Julie can quarantine their property by entering into a prenuptial agreement  with each other (under section 90B of the Act). This means Alan’s house will not form part of the asset pool available to creditors in the event that someone tries to sue Julie or visa versa. The Agreement will also prohibit Alan’s Ex-wife wife from making a claim in relation to Julie’s property.

Financial agreements can reassure and comfort people entering into a marriage or de facto relationships. They are recognised and enforceable under the Family Law act and can save you time, money and a lot of heartache.

IMPORTANT! A word of warning - If you are planning on getting married soon it is inadvisable to enter a prenuptial agreement within two weeks of your wedding. You won’t find this warning anywhere in the Act it’s just something our lawyers believe could go to proving undue influence.  If time is short and there is not enough to formalise your agreement before the wedding you can always make a post nuptial agreement after the wedding.

This comprehensive Pre-nuptial Agreement Kit has been drafted to comply with section 90B of the Family Law Act 1975. It provides all the guidance you need to create a legally binding financial agreement.

It includes

• the Pre-nuptial Agreement
  
• an easy-to-follow instruction manual
  
• prenuptial agreement sample  including several sample clauses to assist you in drafting your own professional agreement.
• PLUS Free Bonus Legal will Kit
  
  

 

Important note: Section 90G of the Family Law Act requires that each party to the agreement receive independent legal advice before the agreement has any legal force, we have introduced our Agreement Review Service as an affordable way to receive the correct certification

 

Our Financial Agreement Review Service is available as an option with this agreement.

Sample Prenuptial Agreement Excerpt