What’s a Pre-Nup and Do I Need One?

Prenuptial agreements aren’t too common in Australia, but that doesn’t mean that they can be extremely useful later on. But what is a prenuptial agreement and are they always required?

Whether it’s the risk of spoiling the anticipation and excitement leading up to the moment of marriage or the thought that perhaps a prenuptial agreement clearly shows doubt or mistrust of the other partner, the fact is that in many circumstances such an agreement can save a lot of headaches should the marriage sour and lead to divroce.

What is a Prenuptial Agreement?

Affectionately also known as Binding Financial Agreements (BFA), prenuptial agreements come from Latin “before marriage” and they lay out in a legally binding fashion the records of assets and debts that each spouse brings to a marriage before the ceremony takes place.

These agreements fall under the Family Law Act and dictate what will happen should the marriage fall apart and lead to divorce. Think of a prenuptial agreement as a sort of hedge if you are entering a marriage in Australia with a significant amount of assets, a business, or property holdings, for example.

Why Sign a Prenuptial Agreement?

If you have decided that a prenuptial agreement is a safe bet against an uncertain future and wish to sign one, you must recognise that your spouse-to-be must also sign and agree to the agreement without coercion or duress.

This is an important point, since often prenuptial agreements are given to the other spouse far too late (right before the marriage ceremony) or under the condition “if you don’t sign this, I won’t get married.”

In any case, prenuptial agreements provide a number of important benefits, including:

  • Protection: assets, property, precious family heirlooms and more can be protected against the other spouse should they attempt to claim them during a divorce proceeding;
  • Transparency: little is left to doubt when both spouses have signed a prenuptial agreement. Should a divorce occur in the coming years, this can result in a far more straightforward divorce process with less animosity and hostility since all of the terms of the prenuptial agreement can be honoured;
  • Cost savings: as mentioned, divorces can sometimes go from costly to ridiculously expensive should one or both spouses choose to make the other’s life as painful and difficult as possible. Prenuptial agreements can save significant costs since the division of property and assets is already defined;
  • Improve a relationship: although prenuptial agreements introduce doubt into a relationship, they are also a clear and transparent way of demonstrating the intentions of both spouses, thus forcing them to discuss their futures together. This can potentially foster a healthier relationship built on sincerity and trust.

Do I Need a Prenuptial Agreement?

To be fair, most marriages don’t really require a prenuptial agreement. Nevertheless, those that do really should have had one signed before the marriage since they’re useless after the fact and once you’re in the midst of ongoing battles with your spouse over property and assets, for instance.

If you require a prenuptial agreement, you’ll need to have it in writing (verbal promises won’t do you any good) and in terms that are favourable and fair. For this reason, it’s best you contact a family lawyer to assist you with the creation and binding nature of a prenuptial agreement.

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