Do You Need a Prenuptial Agreement?

Do You Need a Prenuptial Agreement?

A prenuptial agreement, or binding financial agreement (BFA) in Australia, is an agreement that a couple makes either before moving in together, during the relationship, before marriage or during a marriage.

Requirements for a prenuptial agreement to be binding

For a prenuptial agreement to be binding, it has to meet strict criteria.

Criteria include (see the Family Law Act for the full list):

  1. The agreement has to be in writing.
  2. Each party has to obtain independent legal advice.
  3. The agreement must state under which section of the Act it is made.

What is the effect of a prenuptial agreement?

Once you have entered into the binding financial agreement, you are bound by what you have agreed to in the agreement if you separate.

Why have a prenuptial agreement?

The division of assets of parties at the end of a relationship can be extremely acrimonious. Parties can spend thousands of dollars on legal fees for family lawyers to fight on their behalf.

If you both agree on what should happen, a prenuptial agreement can give you certainty.

Can a prenup be set aside?

A party can apply to have the agreement set aside. Grounds to apply include:

  1. If the agreement was obtained by fraud (non disclosure of assets).
  2. If there has been a significant change in circumstances, such as the birth of a child and no provision was made in the agreement.
  3. If not all of the requirements of the prenuptial agreement were met, such as not obtaining independent legal advice.
  4. If there was unconscionable conduct during drafting/signing of the agreement (for example, signing on the day of the wedding).

Get Family Law Help Now!