Pre-Nuptial and Post-Nuptial Agreements are agreements between you and your partner on how you will divide your financial property in the event that your relationship breaks down.
Pre-Nuptial and Post-Nuptial Agreements will only be binding on the parties to the agreement if they follow the requirements set out in the Family Law Act.
What are the requirements for Pre-Nuptial and Post-Nuptial Agreements?
A Pre-Nuptial Agreement is an agreement made between two people who are contemplating marriage. A Post-Nuptial Agreement is one made after two people have separated or divorced. These types of agreements are commonly referred to as Financial Agreements under the Family Law Act.
Pre-Nuptial and Post-Nuptial Agreements are required to state that they are made under the relevant section of the Family Law Act and set out how, in the event of a breakdown of the marriage, all or any of the property or financial resources of the parties are to be divided;
Are Pre-Nuptial and Post-Nuptial Agreements Binding?
There are certain requirements under the Family Law Act to make a Pre-Nuptial or Post-Nuptial Agreement binding and enforceable, including:
– The Pre-Nuptial or Post-Nuptial Agreement needs to be signed by both parties;
– Both parties must receive independent legal advice before signing the Pre-Nuptial or Post-Nuptial Agreement. This independent legal advice must be on the effect of the agreement on the rights of the party and the advantages and disadvantages of entering into the agreement at the time the agreement is made;
– Before signing the Pre-Nuptial or Post-Nuptial Agreement each party was provided with a signed statement from a legal practitioner that they had received independent legal advice; and
– A copy of the signed statement from the each legal practitioner that a party has received independent legal advice is provided to the other party.
Can a Pre-Nuptial or Post-Nuptial Agreement still be enforceable if it does not meet all the requirements under the Family Law Act?
It is still possible for a Pre-Nuptial or Post-Nuptial Agreement that does not meet all the requirements under the Family Law Act to be enforced.
To be enforced the Court must be satisfied that it would be unjust and inequitable if the agreement were not binding on the parties. If the Court is satisfied they can make an order declaring that the Pre-Nuptial or Post-Nuptial Agreement is binding on the parties.
Is it possible to challenge a Pre-Nuptial or Post-Nuptial Agreement?
The Court does have the power to decide that a Pre-Nuptial or Post-Nuptial Agreement is not valid and set aside the agreement making it unenforceable.
The Court must be satisfied that:
– The agreement was obtained by fraud which includes one party not disclosing a material matter such as the ownership of shares; or
– The parties entered into the agreement to defraud or defeat a creditor of one of the parties; or
– The parties entered into the agreement with the purpose of defrauding another party such as a de facto; or
– The circumstances have changed so much since the agreement was made that it is impracticable for the agreement to be carried out; or
– Since the agreement was made there has been a material change in circumstances that relate to the care and welfare of a child of the marriage and one party will suffer hardship if the agreement is enforced;
– When making the agreement one of the parties engaged in conduct that was unconscionable
If you are thinking about entering a Pre-Nuptial or Post-Nuptial Agreement or need advice on how they work you need to speak to Frank Boitano, an expert in Family Law. Call Barwick Boitano today on (02) 9630 0444 or email on firstname.lastname@example.org for an appointment.
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