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Prenuptial Agreement Cairns
Before marriage, you or your partner can make a prenuptial agreement. This can also be referred to as a Binding Financial Agreement.
If you’re married or in a de facto relationship, you can make a Binding Financial Agreement. This legally binding agreement shows who owns what and what is shared. It also says what will happen to your money if the relationship ends. Speak to one of our prenuptial agreement lawyers today to discuss what’s right for you.
These agreements are useful if:
- One party has more significant assets when entering into the agreement.
- One or both parties have previously been married or in a de facto relationship and have significant assets.
You and your partner must provide full disclosure of each other’s financial circumstances, and you must obtain independent legal advice.
Assets can include:
- cash,
- real estate,
- investments,
- superannuation,
- inheritances,
- as well as detailing any obligations for debts and liabilities created within the relationship.
Speak to one of our family lawyers in Cairns about preparing a Binding Financial Agreement today.
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What is a prenuptial agreement?
A prenuptial agreement (or Binding Financial Agreement) is a legally enforceable written agreement entered into by two people. ’Prenups’ can be made for couples who plan to live together, whether they are married or not.
The agreement defines each person’s financial and property rights if the marriage or de facto relationship ends.
A prenuptial agreement should include:
- a balance sheet of each person’s assets and liabilities when entering into the prenuptial agreement.
- the details of how to treat each person’s separate property if a separation occurs.
- the details on how to treat joint or community property if a separation occurs.
Prenup agreements need certificates of independent legal advice and a separation declaration. Before drafting the agreement, it is recommended to fully disclose all financial information.
Enforcing a prenuptial agreement
A prenuptial agreement is legally binding and enforceable. If the parties do not follow the agreement, you can request the Family Court of Australia to ensure compliance with the agreement. However, the court can set aside prenuptial agreements in certain circumstances such as non-compliance with the Family Law Act, fraud, undue influence, or non-disclosure.
If you require assistance with enforcing a prenuptial agreement in Cairns, get in touch.
Frequently Asked Questions
Does a prenuptial agreement apply in a de facto relationship?
The term ‘prenuptial’ specifically refers to an agreement entered into prior to marriage. The agreement outlines what is to occur in the event that the marriage does not proceed or the marriage ends. If you are in a de facto relationship, you can make an equivalent agreement known as a Cohabitation Agreement.
This type of agreement is a good way of protecting your financial position at the beginning of a relationship.
You can make a cohabitation agreement:
- before you move in together
- while you are living together.
We recommend that you seek expert legal advice in relation to prenuptial and cohabitation agreements.
What are the benefits of a prenuptial agreement?
Typically, prenuptial agreements protect children’s assets from previous marriages or relationships. In addition, a ‘prenup’ opts out of Family Court jurisdiction on property settlements and spousal maintenance. You should seek independent legal advice from an expert family lawyer to ensure a prenuptial agreement serves your best interests in relation to your circumstances.
Speak to our Cairns family lawyers to see how we can help you and your partner protect your assets.
What are the disadvantages of a prenuptial agreement?
Whilst a prenuptial agreement provides protection of assets and liabilities between partners, there is no requirement for the agreement to be fair. It is important to note that intangible contributions, such as caring for children or other family members, are not considered.
Prenuptial agreements should also be updated if circumstances change. For example, if you do not have children and property division is not considered in the event of children, you will need to update the agreement should you decide to start a family. Ensure you seek independent legal advice from an expert family lawyer to ensure a prenuptial agreement serves your best interests and reflects your circumstances.
When is a prenuptial agreement appropriate?
Consider a prenuptial agreement if you or your partner have significant financial assets. It’s important to enter into this agreement freely and well before the wedding day. Seek legal advice from an experienced family lawyer if you have any questions or concerns.
Are prenuptial agreements legal in Australia?
While prenups may seem like a modern trend, imported from the USA, they are, indeed, fully enforceable in Australia.
Based on the provisions set out in Family Law, prenuptial agreements must take the following steps to be considered valid:
- Independent legal advice has been sought by both parties before the agreement is signed. It is important that you and your partner must obtain certificates from different lawyers.
- Full disclosure of the financial positions of both parties is required.
- Both parties must have read and understood the agreement’s contents.
If you are considering a prenuptial agreement or have been presented with one, please speak to our family lawyers before you proceed.
Can I cancel or void a prenuptial agreement?
Challenging a prenuptial agreement is possible if you can prove one of the following:
- Your circumstances have changed and were not accounted for in the original agreement. This could include having children.
- The original agreement isn’t fair and just to both parties.
- The prenuptial agreement was fraudulent. For example, one of the parties failed to provide a full and honest financial disclosure.
- If one, or both parties did not seek legal advice as part of the agreement formation.
- The agreement was signed under coercion or as a condition of the marriage.
Contact our divorce lawyers if you’d like to discuss your circumstances and seek expert advice for your prenup.
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