On 27 November 2019, the Australian Bureau of Statistics reported a high volume of 119,188 marriages in Australia in 2018, including 6,538 same-sex marriages. It also reported there were 49,404 divorces in Australia in 2018, which is 2 divorces per 1,000 people in 2018.
High-profile divorce cases over the past couple of decades have bolstered awareness of the pre-nup, short for prenuptial agreement (otherwise known as binding financial agreement in Australia), among couples who want to ensure a fair distribution of assets in the event they separate. Other instances why pre-nups have become increasingly popular are where couples are entering into their second marriages, or have received gifts or inheritances from their family that they want to protect.
A pre-nup can be entered into at any time by couples (including same-sex couples) before or during their de facto relationship or marriage, or after separation or divorce. Whilst a pre-nup may seem to be no different to a handwritten agreement by the couples themselves, a handwritten agreement may have little to no standing in the Family Court. The primary difference is that a pre-nup is not legally binding unless both parties receive independent legal advice and have their lawyers certify the agreement.
A pre-nup can deal with all financial and property issues including extinguishing claims for spousal maintenance. This is not to say a pre-nup is completely bulletproof. There have been cases where financial agreements have been set aside by the Family Court. These cases, however, involve an element of fraud, duress and or unconscionable conduct. It is important to look at not only the actual terms of the agreement, but also the surrounding circumstances of the parties involved.
Each relationship and pre-nup has to be assessed on a case by case basis, and will in many instances be appropriate and useful, and indeed necessary. As long as the couple has sufficient time to calmly consider and discuss the terms of the pre-nup, and the pre-nup is professionally and carefully drafted and reviewed by an experienced family lawyer and all the other legal requirements are present, pre-nups should absolutely be considered as a strategy for assets protection when entering into a new relationship or marriage.
If you are entering into a new relationship and this blog speaks out to you, please do not hesitate to contact one of our experienced family lawyers on 03 9614 7111.