There is much to anticipate when organising a wedding—from selecting a location to deciding on the food. For many couples, however, one key but perhaps sensitive aspect of preparation is negotiating a prenuptial agreement. A “prenup,” as it commonly is called, is a contract that specifies how assets and debts will be divided if the marriage does not work out.
While the idea of a prenup may appear daunting, they actually outline money security and honesty, giving one enormous peace of mind. You are engaged and an Australian citizen? You ought to know about the legal nitty-gritty of prenups.
What Are the Legal Requirements for Prenups in Australia?
Prenuptial agreements, as they are more correctly called in Australia as “Binding Financial Agreements” (BFAs), do have certain legal requirements that they must meet to be enforceable. They are governed by the Family Law Act 1975. The agreement has to be freely entered into by both parties and without duress. Interestingly, the document must explicitly set out how financial assets, liabilities, and even spouse maintenance are to be paid.
One of the mandatory requirements that the two parties must fulfil is that they acquire advice from prenuptial agreement legal services. This is so that the two understand their rights, the terms of the agreement, and the outcomes in the event that the relationship fails. Both parties must sign the agreement, and the solicitors acting on behalf of the parties must also append their signatures as a certificate testifying that they gave independent counselling to their own clients.
Non-adherence to these terms could render the prenup invalid. Therefore, it is a steadfast requirement to understand the legal process and take proper advice while drafting a Binding Financial Agreement in Australia.
When Do You Need a Lawyer for a Prenup?
Couples may wonder whether the involvement of a lawyer is absolutely necessary. The short answer? Yes. Australian family law actually makes independent legal advice for both of you a requirement of the agreement being legally enforceable. Otherwise, the agreement can be void, and you may be left exposed in the future.
Legal advice is not only necessary, but is also invaluable in some instances.
For example, where one of the spouses has more assets or stands to inherit large amounts, then a lawyer will be able to ensure that they are adequately protected. On the other hand, where either party is entering marriage with large levels of debt, then legal consultation will be able to guarantee how this will be addressed if the marriage were to break down.
A lawyer will also make sure the wording in your prenup is concise, simple, and consistent with Australian laws, so the chance of misinterpretation or conflict in the future is low or zero. A lawyer is also a go-between to make the process fair and unbiased. This might avoid resentment or misunderstandings from arising. A financial agreement that is entered into jointly and with dignity has a tendency to make the relationship even stronger because it fosters openness and trust.
The Need for Legal Advice
Although it might be tempting to save time or money by drafting a prenup yourself, the implications of not getting legal advice are catastrophic.
An illegibly written or unsigned agreement may be defended in court and is unlikely to stand up for you when you do need it. For prospective Aussie couples contemplating matrimony, throwing in a veteran family lawyer is not about fulfilling technical criteria; it’s about being responsible to your future. A lawyer customises your contract to your unique circumstance, giving you security and peace as you start this new life together. Finally, a prenuptial agreement, when executed properly, is not planning for your relationship to fail but rather being on the same page to begin with. Having a lawyer does it easily and provides a solid foundation on which to build your future.