Do Pre-nups really mean anything?

Binding Financial Agreements


Many have heard of the term “Pre-Nup Agreement” usually from American movies or sit-coms.

The general impression is that it is an agreement made between people who are about to get married and one party wants to protect their assets as they have significantly greater assets than their proposed partner.

In Australia these agreements are called Financial Agreements and are pursuant to the Family Law Act. They can be entered into prior, during or after marriage and similarly prior, during or after the end of a de-facto relationship.

Such agreements set out how your property will be divided if your relationship comes to an end. The agreement will determine how your property will be divided and prevents the Family Courts from being involved.

Such agreements are becoming quite common where people are entering into second or more marriages and have children and assets from previous relationships. Their advantage is to enable both parties to make sure that the terms of any property division are agreed up front and will not end up the subject of protracted and invariably costly litigation.

After separation they are an alternative to obtaining consent orders from the courts.

Financial agreements are not in fact binding unless the requirements of the Family Law Act are met. One of these requirements is that both parties receive independent legal advice for such agreements to be valid. What this means is, you should ensure that you meet with a solicitor with experience of these types of financial agreements.

It is important to note that no other form of document (excluding orders from a court), is effective in determining a property division after separation. Any such document may be overturned by a court at a later date.

Another important advantage of Financial Agreements is that a transfer of real property made pursuant to such an agreement, does not incur state stamp duty. This alone will often cover the cost of such an agreement.

The team at QLD Law Group are here to help you through these agreements. Please contact Simon Pattison on 3221 8000 or to discuss your personal circumstances further.

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