FAQ’s – Getting Married

How to protect your assets

Here is an example scenario which demonstrates how a financial agreement can protect assets that were owned prior to cohabitation. Read more

Will a pre existing cohabitation agreement still be valid even after you get married?

If you make the de facto agreement and then decide to marry it is not be the same as making a 90b prenuptial agreement. If you marry you have to sign a new agreement. Section 90SC(1) says that the new laws cease to apply if the parties to a de facto relationship later marry one another. In those circumstances, the more familiar provisions of the Act would govern the now married couple’s relationship. Read more

Can you allow for different outcomes depending on who ends the relationship?

The agreement only specifies that the division of Assets and Liabilities shall be (whatever you decide) if the relationship ends. It makes no distinction if one party or the other ends the relationship. I would think you would need to be very careful including such a provision in an agreement.

Can you allow for future children in the agreement?

Yes.  However, it is difficult to fully appreciate how each party’s needs will change following the arrival of children, and as such, to plan in advance for such a life changing event.  Having a child or children could also result in the loss of income for a spouse party if they choose to stay at home to raise their child/ren – this forfeit of income is another huge lifestyle change which may or may not be foreseen.

For this reason, we recommend you review your Financial Agreement regularly, particularly following any substantial life changes, which are a part and parcel of our natural development as a person and as a couple.  You may also wish to insert a sunset clause into your Agreement, so that it will terminate on the occurrence of specified events, such as the birth or adoption of children.  You can then take steps to prepare an updated Agreement to take into account your needs at that point in time.

Can you change a prenup agreement after it has been certified?

Yes.  If you haven’t yet finalised/signed your prenup, you will need to have a solicitor review your updated Agreement and provide you with current advice and a statement confirming they have provided you with the advice, before you sign it as your original advice will be obsolete.

If you have already finalised/signed your Financial Agreement, any changes must take the form of a completely new Financial Agreement.  The new Agreement must contain a clause terminating the old one and will set out the new terms and conditions.  You will also need to follow all the procedures for creating a valid Financial Agreement, however small the changes may be. This means that you will both need to receive independent legal advice pertaining to your new Agreement before signing it, and follow all other procedures consistent with creating a new Financial Agreement.

When does a Financial Agreement come into effect?

Whilst you can stipulate how you want to divide property in the agreement theoretically, the practical division of assets and liabilities does not occur until either party has signed a separation declaration. Read more

What happens if all the assets aren’t disclosed?

The parties have a duty of disclosure to the court as well as each other. If one party tries to hide Assets or liabilities that effect the other party the party could go to court and argue to have the agreement set aside. Read more

My partner and I will share all of our household and living expenses but he earns far more than I do. Does the agreement have to state our expenses are to be divided evenly ?

No, it is probably better to say that until such time as you become pregnant or a mother and unable to work, your contribution to expenses should be in proportion to your earnings. Read more

How much detail is required when we fill out the Assets and Liabilities schedules?

Financial agreements can be set aside for fraud (which essentially means non-disclosure of something that matters). Full and frank disclosure is fundamental if an agreement is to survive a legal challenge. Read more