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Pre-nup FAQ’s

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Pre-nup FAQ’s 2017-11-10T01:54:31+00:00

FAQ about Pre-Nuptial and Defacto Agreements

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Yes, provided that the agreement is properly prepared, follows the strict requirements of the Family Law Act and there are no grounds for setting it aside. For a summary of the law addressing these issues, click here.

Yes. The agreement can be set aside on a number of grounds, most notably where there has been a material change in circumstances relating to a child of the marriage. For a list of the main grounds go our summary of the law by clicking here.

Your solicitor should help you consider the various scenarios that may occur during your relationship and suggest provisions in your agreement that address those scenarios. For example, the party who has primary care for a child(ren) may receive a greater percentage of the assets on a marriage breakdown, such percentage could vary in the agreement depending on the number and age of the child(ren) as at the time of breakdown. Addressing possible outcomes will minimise the likelihood of tha agreeement being challenged in the future.

Yes. The agreement can be set aside on a number of grounds, most notably where there has been a material change in circumstances relating to a child of the marriage. For a list of the main grounds go our summary of the law by clicking here.

Your solicitor should help you consider the various scenarios that may occur during your relationship and suggest provisions in your agreement that address those scenarios. For example, the party who has primary care for a child(ren) may receive a greater percentage of the assets on a marriage breakdown, such percentage could vary in the agreement depending on the number and age of the child(ren) as at the time of breakdown. Addressing possible outcomes will minimise the likelihood of tha agreeement being challenged in the future.

Yes, but it must be entered into according to the strict requirements of the law.

No. The agreement is binding provided it satisfies the requirements of the Family Law Act. For further information, click here.

Subject to any unforseen circumstances, the agreement should take approximately 4-6 weeks from the time you meet your respective solicitors to the time the agreement is finalised.

1. Each of you is required to be legally represented
2. The solicitors will take detailed instructions from the parties about their financial circumstances, future intentions (eg children), contributions already made to the property, estate planning requirements and the agreement they wish to enter
3. Each solicitor should provide each party with a detailed letter of advice
4. Valuers and accountants may be required to assess the value of your property, liabilities and financial resources
5. The agreement is drawn and negotiated
6. When the agreement is finalised, it is signed by the parties
7. The solicitors sign off certificates which form part of the agreement

A binding agreement continues to operate despite your death. For example a provision in an agreement providing for spousal maintenance will continue to be binding and enforceable against your respective estates after your death, unless the agreement provides that such obligations cease on death.

Preparing basic information about your agreement before you see your solicitor will save time and money. We provide a checklist below:

1. A list of your assets, liabilities, resources, entities (companies, trusts, partnerships, businesses), superannuation / pension entitlements. The more detail (including estimated values) the better
2. A list of your partner’s assets (as per 1 above)
3. Your employment details (name of employer, your position, your salary and entitlements)
4. Your partner’s employment details
5. Your personal details (full name, date of birth, previous marriages (if any), details of any children)
6. Your partner’s personal details
7. You and your partner’s intentions with respect to the following matters: division of property on separation; spousal maintenance during marriage and after separation; superannuation; and children
8. Copies of your last tax return, any valuations of property, last bank statements (bank accounts and credit cards) and entity documentation (eg constitutions, trust deeds, list of officebearers, tax returns, financial statements)

A binding pre-nuptial or defacto agreement prevents the Court from making orders about the division of property or spousal maintenance to the extent those matters are covered in the agreement.