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PRE NUPTIAL AGREEMENTS

PRE / POST NUPTIAL AGREEMENTS / BINDING FINANCIAL AGREEMENTS

Pre nuptial agreements are literally agreements made between parties prior to their marriage. Post Nuptial Agreements are made between parties after their marriage. Both types of agreement are formally known as Binding Financial Agreements or Financial Agreements.

Financial agreements are made by people who are intending to marry and are often made shortly before the date of marriage. If parties have no intention of marrying, then such agreements would normally be referred to as a de facto agreement or cohabitation agreement. The format of such cohabitation agreements may vary depending on what State or Territory the parties reside in.

A financial agreement is a written agreement between a prospective husband and wife as to how they propose to deal with each other both during the marriage and in the event of a separation at least so far as financial matters are concerned. The agreement will usually provide how the parties propose to operate in respect of financial matters, as well as often providing what should occur in the event of the marriage breaking down including how specific assets are to be divided.

Traditionally, these agreements were common place and indeed, essential as the law in the 19th century was that John had control over his wife’s assets in the absence of such agreement. In more recent times, financial agreements have again become more popular, particularly since the Family Law Amendment Act 2000 (which took effect from 27 December 2000) provided for financial agreements to be fully enforceable in the Family Court of Australia provided certain conditions are met by the parties to the Agreement.

In fact, the Act allows for Financial Agreements prior to marriage (see discussion on Family Law Act 1975 - Section 90B below) after marriage (Section 90C) and even after separation (Section 90D). This Kit deals with both Section 90B and Section 90C agreements.

 

To ensure that your financial agreement complies with the Family Law Act 1975 you should:

  1. Make the agreement in writing.
  2. Make the agreement before your marriage and in contemplation of that marriage.
  3. Ensure the agreement must be signed by the parties.
  4. Ensure the parties’ signatures are witnessed by an authorized person.
  5. Ensure both parties have independent legal advice prior to entering into the agreement, and evidence that by providing Certificates (Annexure A & B in Document 5) signed by a legal practitioner.
  6. Ensue that the agreement relates to specified property of the parties. The property can be in specific terms (eg, the Holden motor vehicle registration XXY 123) or in general terms (eg, any motor vehicle owned by George).
  7. Ensure the agreement makes it clear that it is intended by the parties that the property dealt with in the agreement is not to be made the subject of the property orders subsequently by the Family Court.

As part of the agreement, there would normally be an itemisation of the financial position of each party at the time of entering into the agreement. You would normally list the assets, liabilities and financial resources of each party together with their values. It is useful at that time to obtain documentary proof of the values of the assets, liabilities and financial resources and you should retain that documentary proof.

 

If it is your intention that, in the event that the marriage is unsuccessful, you want the Family Court to enforce the terms of the agreement, then it is essential that both parties comply with the terms of the agreement during the marriage.

 

The decisions you make about your financial arrangements are obviously very important decisions. The AussieLegal Pre / Post Nuptial Agreement Kit will tell you what you need to know to enable you to draft a financial agreement.

Your draft agreement must then be taken to yours solicitor, and the other party must also see their solicitor) to be reviewed and certified before signing.

Under what circumstances should I consider signing a financial agreement?

  • If you are a business owner and want to maintain control of that business in the event of separation;
  • You have significant assets;
  • You have considerably more assets than your partner;
  • You have children from a previous marriage and you want to be sure that the family wealth passes to them;
  • You may be giving up a lucrative career and want protecting in the event of separation;
  • You have a family member who has special needs, i.e. disabled child;
  • You want certainty in respect of your financial position in the event of separation;
  • You are concerned about a significant debt that one of you I bringing to the marriage;

Pre / Post Nuptial Agreements (including legal certification for you AND your partner) $1,875.00

AussieLegal can do all the hard work and have your Binding Financial Agreement executed quickly and efficiently - no other costs involved:

  • Your Agreement will be complete, compliant and fully enforceable;
  • Save thousands in legal fees compared to other solicitors;
  • The price is fixed - no surprises;
  • Save time - we are very efficient at dealing with these agreements;
  • Convenience - there is no need to make repeated visits to solicitors; and
  • Legal advie - our panel of independent law firms who provide the advice and certification are very experienced family law practitioners; and
  • Our experience - we have helped hundreds of people establish their Binding Financial Agreements.

Call 1300 728 200 for more information or click on the link above.

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