A Guide To Prenuptial And Postnuptial Agreements In Australia

January 12, 2022    Familylawyers   
A Guide To Prenuptial And Postnuptial Agreements In Australia

A prenuptial arrangement is an agreement between partners who think about getting married or entering into a de-facto relationship. It usually covers financial matters but could also include issues like spousal maintenance. In the family law system of Australia, these are called Binding financial agreements. The agreements address how to divide the net assets and resources if a marriage breaks down. This agreement makes sure there is no involvement of the Family Court in this issue. A prenuptial lawyer in Australia manages the matters.

Usually, couples enter into a prenup before engaging in a de-facto relationship or getting married. A similar agreement setting out how assets and debts are divided after a marriage breaks down can be started at any relationship stage. The agreement can begin even after the end of the relationship.

How Is A Prenuptial Arrangement Drawn Up In Australia?

A prenup agreement or a binding financial agreement has to be in writing and signed by couples entering the prenup. The spouse parties involved in the prenup need to be advised independently by family lawyers in Perth. Before it is signed, each of the partners needs to be given legal advice explaining the advantages and disadvantages of a prenup agreement. Lawyers also need to show that they provided advice to each of them.

Benefits Of A Prenuptial Agreement

There are various benefits of a prenuptial agreement; some of them are-

  • Certainty: an individual and their partner can set out a detailed way in which the net worth and assets will be divided if they separate in the future.
  • Finality: a prenup sets out how the assets will be divided so that a Family Court cannot alter or negate the agreement. This makes it possible to deal with any dispute within the agreement itself.
  • Security: a prenup helps in peace of mind regarding future arrangements carried out. This means that both spouses can make good plans without worrying about the future.
  • Tax Benefits: the transactions carried out are by the BFA to attract the same benefits as Court Orders. This indicates that parties set to receive or exchange property can get savings on capital tax gains and state transfer duty in certain cases.
  • Prenups Are Private: only the prenuptial agreement lawyers and parties are involved in working out the terms of the agreement. This is different from Court proceedings where family and friends are called eyewitnesses and proceedings are seen by other litigants in court.
  • Time And Cost: preparing and entering a prenup is not a protracted process. Once the parties agree on terms, a BFA and the accompanying letter of advice is prepared usually in one to two weeks. In contrast, if parties are separated, a prenup does not exist, and they cannot agree on reorganising their finances and assets.

They also could have to engage in a court to settle disputes which will involve high costs than the perpetuation of a prenup. It could also take years for such disputes to resolve. Lastly, a prenup is useful for estate planning. It lets each party specify what can happen with assets when a relationship breaks down, indicating better plans and provisions for children.

Postnuptial Agreement

A Postnuptial agreement is referred to as a ‘binding financial agreement’ in Australia under Section 90 C of the Family Law Act, 1975. This sort of agreement includes prenuptial agreements, divorce agreements and separation agreements. A Postnuptial agreement allows couples to enter into a financial agreement during their de-facto relationship or marriage to determine how spousal maintenance and property will be dealt with at the end of divorce, death or separation.
Why Enter Into A Postnuptial Agreement In Australia?
There are many reasons why couples enter a postnuptial agreement throughout a marriage or relationship. Some of them are:

  • Circumstances are capable of changing throughout a marriage, especially in finance. If a couple previously has a prenuptial agreement, they could enter a postnuptial agreement for the sake of having updated documents.
  • If there has been an important change in a couple’s financial situation, it is good to enter into a postnuptial agreement.
  • If a spouse is a part of the family business and has to protect ownership and assets from the other partner, a postnuptial agreement can help. The agreement can be used to have control over ownership of the business during a divorce or the death of a spouse.
  • For couples that are entering a second or third marriage with children, a postnuptial agreement can help ensure their children receive assets.
  • What Should Be Included In A Postnuptial Agreement?

A postnuptial Agreement In Australia Could Include The Following Things-

  • Debts and assets
  • Spousal maintenance
  • Insurance coverage
  • Expectations of inheritance or gifts
  • How property can be split
  • What is covered in every party’s Will at the time of death?

Hire Lawyers In Perth

Couples who are married or in a de-facto relationship with their partner and wish to enter into a prenuptial agreement could take advice from lawyers in Perth. These lawyers will make sure that any disagreements involved in the agreement do not spill over to Courts. One could associate with Family lawyers Perth WA to ensure they receive the best lawyers who have great experience managing prenuptial and postnuptial agreements between couples in Australia.

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