Prenuptial Agreements

Whether or not you and your partner should enter into a prenuptial agreement depends on your circumstances. Our family lawyers will sometimes advise against them. If you want prenuptial agreement advice, we offer consultations for family law matters; you can request one here.

A prenuptial agreement can include various types of assets such as real estate, bank accounts, investments, businesses, and personal property. It can also cover future earnings and any potential inheritances. The aim is to protect these assets in case of a separation or divorce.

Yes, a prenuptial agreement can be modified after marriage through a postnuptial agreement. Both parties must agree to the changes, and the new agreement must meet the same legal requirements as the original prenuptial agreement, including independent legal advice for both parties.

If one party does not comply with the prenuptial agreement, the other party can seek enforcement through the courts. The court will review the agreement and determine whether it is fair and legally binding under the Family Law Act before enforcing its terms.

Yes, prenuptial agreements are enforceable in Australia as long as they meet the requirements outlined in the Family Law Act. This includes full disclosure of assets, independent legal advice for both parties, and the agreement being fair and reasonable at the time it was made.

No, prenuptial agreements cannot include provisions for child custody and support. These matters are determined by the courts based on the best interests of the child at the time of separation or divorce. Prenuptial agreements focus on financial matters and property settlements.

The time it takes to prepare a prenuptial agreement can vary depending on the complexity of the couple’s financial situation and the level of negotiation required. Generally, it can take a few weeks to several months to draft, review, and finalise the agreement.

Yes, for a prenuptial agreement to be legally binding, both parties must seek independent legal advice from separate lawyers. This ensures that each party fully understands their rights and the implications of the agreement, preventing claims of coercion or unfairness.

When there is a significant disparity in financial situations, it is even more crucial to have a prenuptial agreement. The agreement can help ensure that both parties’ interests are protected and that there is a clear understanding of how assets and finances will be managed during and after the marriage.

Yes, a prenuptial agreement can be contested in court if there are grounds to believe that it was entered into under duress, fraud, or undue influence, or if it does not meet the legal requirements of the Family Law Act. The court will evaluate the fairness and validity of the agreement before making a decision.

The cost of a prenuptial agreement can vary widely depending on the complexity of the couple’s financial situation and the amount of negotiation required. Typically, the cost can range from several thousand dollars upwards. It is important to consider these costs and obtain proper legal advice to ensure the agreement is valid and enforceable.

In Australia, whether a family trust protects assets in a divorce depends on various factors and the specific circumstances of the case. While family trusts can be useful in asset protection, especially when established and managed appropriately, they are not foolproof in divorce proceedings. 

Courts have the authority to look beyond the legal ownership of assets and consider the trust’s structure, purpose, and how assets are used or distributed. If a trust is deemed to have been established or operated primarily to defeat or frustrate a spouse’s claim in a divorce, the court may view the trust assets as part of the marital property pool subject to division. Therefore, while family trusts can offer some degree of protection, individuals should seek legal advice from experienced family lawyers in Brisbane to understand the effectiveness of their trust structure and how it may be viewed in the context of divorce proceedings.

One question we are often asked, particularly from those that have already been through the family law system, is ‘how can I protect my assets from my new partner?’

While a binding financial agreement is often the answer, you have another option, to become familiar with the family law system. If you are familiar with the family law system and how property/financial settlements are structured, you can structure your relationship with your new partner to minimise financial risk.

It’s important to know when a new partner has a right to apply for a property settlement, as until they have a right to apply for a property settlement, your assets are theoretically protected.

It’s important to note, your new partner can apply for a family law property settlement that includes your assets, even if you aren’t married. As long as you live in a genuine de facto relationship, your assets are not protected from your new partner.

There is a myth that you must be living together for two years to be considered a genuine de facto relationship. While it is partially true; a family law property settlement claim can also be made, if:

• You have children together; or
• Have registered the relationship; or 
• One person has made significant contributions; or 
• Another circumstance exists where it would be unjust not to do a property settlement.

Therefore if any of the above applies to you and your new partner, even if you haven’t been together for two years, your new partner may apply for a property settlement.

If a right to a property settlement does arise, it might shock you that your initial assets (the property you brought into the relationship) are not automatically excluded from the property settlement. And as mentioned above, it doesn’t matter whether you are married or not if a genuine de-facto relationship exists, a property settlement can be done.

When deciding a property settlement split, both parties’ assets, whether owned jointly or separately, are combined to create a separation property pool. If no binding financial agreement is in place that states otherwise, the property settlement may include any property owned before marriage.

If all of your assets can be included in a property settlement and your partner has or will likely have the right to a property settlement, how can you protect assets in a de facto relationship? 

While you can do all sort of financial things, set up trusts, move money or hide money overseas, the reality is – all property is included in a family law settlement. Courts can see through trusts, hiding assets overseas isn’t usually a great idea and moving money into someone else’s name comes with its risks. The reality is the best way to protect your assets in a new relationship is usually to enter into a binding financial agreement. However, depending on your situation, you can try to make minor modifications in your relationship to protect your assets without a binding financial agreement. 

Option 1 – Protecting assets in a de facto relationship with binding financial agreements

A binding financial agreement isn’t only applicable if you are about to become married or de facto. You can enter into a binding financial agreement at any time during a sexual relationship, during marriage and even after a relationship (de facto or marriage) has ended. 

A binding financial agreement means you agree with how your financial resources, assets, and liabilities are divided upon a split. Therefore, if the binding financial agreement covers your current assets, in the event of a separation, your new partner will not be able to claim these assets if they have signed that agreement unless the court decides to set the agreement aside (you can read more about that here).  

Option 2 – Protecting assets in a de facto relationship without a binding financial agreement

Although we recommend a binding financial agreement, it might be possible to protect your assets differently. In 2016, the Family Court decided in Chancellor v McCoy that even after a 27 year de facto relationship, there were no adjustments made to the division of the property between the parties. This meant that they each walked away with the property and superannuation that was in their respective names. The couple had no children, had never co-owned any properties and never intermingled their finances.   

Using this case as precedent, if there is no binding financial agreement in place, a court will likely consider the following factors when deciding whether your partner would have a claim in an adjustment to the property pool:  

• Whether you had any joint bank accounts; 
• Whether you keep your finances separate;  
• Whether you co-owned any assets; 
• Whether your partner lived with you in a property you owned, and they paid you only an amount equivalent to rent or board and did not otherwise contribute to the property; 
• Whether you discuss your financial affairs with one another; 
• Whether you made any future financial plans together; 
• Whenever you nominated each other as a potential beneficiary in a Will or superannuation fund. 

People will often have a house or home from a previous relationship that is the family home. Clients will often come to us concerned about protecting the family home; our advice is that the family home is like any other assets and will likely be included in the family law property settlement. If you want to protect your house from your new partner, the best way would be to enter a cohabitation agreement, a type of binding financial agreement. In this agreement, you should set out the basis upon which you live together and the extent to which you intend to share assets both during the relationship and what you agree is to happen in separation. 

However, just because you have an agreement in place doesn’t necessarily mean your partner still can’t claim in the event of separation. Therefore, it is still best to keep separate finances and even go so far to ensure that your partner does not contribute to the house, financially or otherwise. This means that if your partner is living with you, ensure that they only pay you rent or board in the amount any other tenant would pay and does not pay any more than that amount or contribute towards other bills or mortgage repayments. However, additional to that is to ensure that they don’t contribute non-financially through renovation, cleaning, gardening, and cooking. If your partner does do some of these things, it doesn’t automatically entitle them to these things; it shows an intention to share a life, not a property. However, it could mean they are entitled to an adjustment of the property pool, and your house may not be protected in separation.   

You have other options, including putting the home in a trust or gifting it as an early inheritance. Ultimately, no matter what you do, it will likely be seen as a financial resource and included in some way, shape or form in the property settlement. Therefore your best option is usually a binding financial agreement/cohabitation agreement. 

While we recommend it, one should note that not even a binding financial agreement is rock solid. If you have a binding financial agreement in place, should circumstances or assets change, or should other factors be at play, it may not protect your assets in a new relationship. Additionally, not having a binding financial agreement and simply separating your bank accounts or lives may not be enough. If you want to protect your assets in a new relationship, you should seek independent legal advice from a family lawyer as soon as practical. Learn more about protecting assets from a new partner here.