Making A Prenup Agreement In Australia – Do You Need One?

With around one in three first time marriages ending in divorce, and 50 percent of second marriages going the same way, the number of people making a prenup agreement in Australia is on the rise. A prenuptial agreement is a legally binding document that states how a couple’s assets should be divided in the event of divorce.

But I am not rich…

Many people make the mistake of thinking only celebrities and tycoons need to consider a prenup, but if you have any assets at all that you acquired before you met your present partner, you should sign a prenup. Especially in the case of people who are marring for the second time, as by this stage of their lives they have usually accumulated a property, may own shares in a company or have their own business.

A prenup should also be in place if a one partner has any children from a previous marriage.

If you are likely to inherit in the future you should certainly sign a prenup.

But a prenup is so unromantic!

Approaching the subject of a prenup is certainly a romance killer, that’s for sure - and a difficult topic to discuss. However, it is also difficult losing the home you worked hard for all your life to someone you were only married to for 12 months. Or if your children lose their inheritance to a person who turned out to be a control freak with sadistic tendencies, you would also find that a very bitter pill to swallow - so do not lay off signing a prenuptial agreement just because you think the topic will be hard to approach without causing bad feeling. A loving partner will understand your concerns, especially if you have been honest about your intention to protect your financial assets from the beginning. It is best to disclose that you would only marry with a prenup in place very early on in your relationship – that way there are no nasty surprises.

OK – I am convinced…How do I get one?

Making a prenup in Australia is fairly straight forward, but each partner will need to seek legal advice for the agreement to be legally binding. Legal advice should be given independently, from a qualified professional, and the effect of signing the agreement should be explained clearly as well as each person’s rights. The pros and cons of signing the agreement should be fully disclosed by the legal advisor.

For the agreement to comply with the Family Law Act, it must be written out before the marriage and relate clearly to specific assets. Finally both parties must sign in front of an authorized person. As each agreement is completely unique to a couple, a customized prenuptial agreement must be drawn up and discussed; as a result you can expect to pay in the region of around $2000 for your prenup, but this will vary, often quite significantly on a case to case basis. You should never trust free outdated prenup forms that you can download online or make a costly mistake by trying to write your own prenup agreement – always seek professional legal advice.