As a leading team of family lawyers in Melbourne, Nevett Ford is proud to provide high-quality advice and representation in all aspects of binding financial agreements (BFAs) – also known as prenuptial and postnuptial agreements.
We offer extensive support, clarity and representation in all aspects of prenuptial and postnuptial agreements to obtain the best possible outcome for you. We can draft new agreements or review and negotiate existing agreements, as well as work towards helping you obtain protected or isolated assets if necessary.
With years of experience, a transparent yet compassionate approach and a deep understanding of family law, our dedicated team of lawyers is well-equipped to navigate even the most complex prenup and postnup cases with skill and diplomacy. Our goal is to ensure your interests and future are protected.
What are Prenuptial and Postnuptial Agreements?
Prenuptial agreements – also known as prenups or BFAs – are legal documents created by couples before marriage, while postnuptial agreements (postnups) are made after marriage. These agreements outline the division of assets, debts, and other financial matters in the event of a divorce, separation or even death.
While there are many similarities between a prenup and a postnup, the key difference between both is when they were created. In some cases, a postnup is also made when the original prenup is outdated and requires adjustment, such as if a partner receives a significant windfall after marriage, or if you start a family and need to reconsider financial arrangements.
These legal agreements can benefit couples of all financial backgrounds by:
- Offering Clarity and Certainty: You and your partner will have the exact details of how your net assets and resources will be divided if you choose to separate in the future, providing peace of mind.
- Providing Protection and Security: Your valuable assets, including property, family heirlooms and businesses owned, will be protected as instructed in the agreement.
- Facilitating a Smooth Process: Prenuptial and postnuptial agreements help to facilitate a smooth and seamless separation or divorce by preventing contentious disagreements.
- Saving Time and Cost: If asset division happens without a prenup or postnup, lengthy and expensive court battles may ensue, which can take months or even years to resolve.
You should consider a prenup or postnup if you:
- Have been married previously
- Have children with a former partner
- Have significant assets that need to be protected
- Have received or will receive inheritance or gifts in the future
- Have significantly more assets than your partner before getting into the relationship
- Have joint assets with your others, such as your parents or siblings.
Getting a Prenuptial or Postnuptial Agreement in Australia
Securing a prenuptial or postnuptial agreement in Australia requires careful consideration and adherence to legal procedures to ensure its validity and enforceability. Here’s a step-by-step guide:
- Have a Mutual Discussion
First, sit down with your partner and discuss the state of both your finances – including but not limited to your assets and debts – as well as the goals you wish to achieve with the prenuptial or postnuptial agreement.
- Engage A Lawyer
Consult with a qualified prenup and postnup lawyer to gain a comprehensive understanding of the legal framework surrounding prenuptial and postnuptial agreements in Australia. Your lawyer will guide you through the process and explain the implications of each decision.
- Draft the Agreement
Commence drafting – independently or with the assistance of prenup or postnup lawyers – and ensure that the division of assets, liabilities, and any other financial obligations is detailed in the document.
- Obtain Independent Legal Advice
You and your partner must seek independent legal advice from separate lawyers to review the drafted agreement thoroughly. This step ensures that each party fully understands their rights and obligations under the agreement.
- Sign and Exchange Statements
Once you and your partner have received legal advice, the agreement can be signed. Each lawyer will provide a signed statement confirming that they have provided legal advice, and these statements will be exchanged between the parties.
- Document and Store Records
Keep documented records of the signed prenup or postnup and the legal statements provided by the respective lawyers. These documents serve as crucial evidence of the agreement’s validity and can be referenced in the future if needed.
Our Role in the Prenup or Postnup Process
- Consultation
You can schedule a phone consultation with one of our experienced lawyers to decide if we fit your needs. Then, we will request detailed information on your property, finances, family dynamics and goals for the prenup or postnup so that we can tailor our advice and recommendations.
- Strategy
During your personalised strategy session, conducted either online or in person, our team will outline your options and strategy in detail, as well as address your queries or concerns. If you opt for our assistance, we will provide a transparent fixed fee quote.
- Drafting
Once you have confirmed our services, we will gather any additional necessary information and prepare the prenup or postnup for your review and approval.
- Negotiation and Finalisation
Upon completion of the prenup or postnup, we will submit the draft to your partner’s lawyer for consideration. Our team will handle any negotiation processes on your behalf to ensure that your interests are protected.
- Final Signing
Once both parties have received independent legal advice and agreed upon the terms, the prenup or postnup, as well as any accompanying documents, can be signed.
Frequently Asked Questions
What is the difference between a prenuptial and a postnuptial agreement?
The primary difference between a prenuptial agreement (prenup) and a postnuptial agreement (postnup) is the timing. A prenup is created before marriage, while a postnup is created after marriage. Both serve the same purpose of protecting assets and outlining financial arrangements in the event of a separation or divorce.
What do prenuptial and postnuptial agreements cover?
The terms of a prenup and postnup can cover a wide variety of matters, including:
- Division of Assets: Clarifying how assets will be divided and in what proportion in the event of a divorce or separation.
- Debts and Liabilities: Outlining responsibility for existing debts and how future liabilities will be managed.
- Separate vs. Joint Property: Defining which assets are considered separate and which are joint, offering protection for individual assets, inheritances, and family businesses.
- Spousal Maintenance: Establishing terms for spousal support, including pre-determined amounts or conditions for maintenance payments.
- Financial Arrangements for Children: While these agreements cannot determine child custody or support payments, they can address financial provisions for children.
- Future Changes: Detailing how financial arrangements will be adjusted in case of significant life events, such as having children, receiving an inheritance, or a major change in income.
It is important to note that prenups or postnups do not cover the custody of children or child support payments. They are predominantly used to dictate how a couple’s finances will be divided in the event that the relationship breaks down.
Are prenuptial and postnuptial agreements legally binding in Australia?
Yes, both prenuptial and postnuptial agreements are legally binding documents, provided they meet certain legal requirements. However, their enforceability may vary depending on the specific circumstances of each case. Speak to a lawyer to find out more about the status of your prenup or postnup.
Do both parties need to have a lawyer for a prenuptial or postnuptial agreement to be valid?
Yes, having independent legal advice ensures that each party fully understands their rights and obligations under the agreement and is a legal requirement for validity.
Can I change a prenuptial or postnuptial agreement?
If both parties agree, a prenuptial or postnuptial agreement can be altered or terminated accordingly. An experienced lawyer can assist you in understanding your options.
Can a prenuptial or postnuptial agreement be challenged in court?
Yes, both prenups and postnups can be challenged in court under certain circumstances, such as coercion, failure to disclose assets, or significant changes related to the well-being of a child.
How long does it take to create a prenuptial or postnuptial agreement?
This can vary depending on factors such as complexity, negotiations, and legal requirements. On average, they may take several weeks to a few months to draft and finalise, so it is best to start the process early to allow ample time for review and revisions.
What is the cost of creating a prenuptial or postnuptial agreement?
Costs in Australia can vary depending on complexity and individual needs. At Nevett Ford, we pride ourselves on offering affordable services and will provide a transparent quote after an initial consultation. Get in touch with us to find out more.
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Our team is backed by leading expertise and years of experience in prenuptial and postnuptial agreements, as well as binding financial agreements, with hundreds advised upon each year.
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WHO YOU'LL WORK WITH
Richard Hamilton
Director
Jenny Christofidis
Special Counsel
Erin Trantino
Senior Associate
Maggie Wang
Associate
