Pre-Nups (or “pre-nuptual agreements”) are generally the colloquial or American term for “Financial Agreements”. Under Australian family law, couples can enter into these types or agreement which are meant to cover in a binding way financial matters relating to their relationship.These agreements are meant to remove a Court’s jurisdiction to deal with such financial matters in the event the couples separate.
Couples can agree to enter into a Financial Agreement before and during marriage and after separation and divorce. Couples who do not marry can also enter into a Financial Agreement.
The term “pre-nup” is generally used when a couple wishes to enter into a Financial Agreement before getting married or before living together as a way to protect any pre-relationship property in the event of a separation.
Financial Agreements under Australian family law are complex and technical creatures. If they are not prepared according to strict legal requirements, they can be set aside and a Court can deal with the financial matters of the couple. What this means is that the Court can deal with property that might otherwise have been protected by the Financial Agreement if it had not been set aside.
Apart from failing to comply with legal requirements, a Financial Agreement can be set aside for other reasons such as if it was obtained by fraud or if there has been some other unfair conduct such as duress, which leads us to the heading of this blog!
Negotiating Financial Agreements can be awkward and emotionally difficult. Often, is it one party (or that party’s family) wanting a Financial Agreement whereas the other party is offended by the request and considers the Financial Agreement unnecessary.
As family lawyers, we are often asked “How close to the wedding day can I get my fiancé to sign a pre-nup?” It is very important that both parties enter into the Financial Agreement freely and voluntarily and it is best not to have “ink on the wedding dress”. You need to ensure that there is no pressure from one party by for example, threatening not to go ahead with the wedding if the Financial Agreement is not signed.
Although there is nothing in the legislation or case law that provides for an appropriate period of time, couples should ensure that ample time is provided to consider and sign the Financial Agreement before the wedding so that no one can suggest undue influence or duress.
At Farrar Gesini Dunn, we are experts in family law. We live and breathe it. We specialise in drafting and advising clients about Financial Agreements as well as other family law matters. Give us a call or send us an email if you have a family law matter you wish to discuss or even if you just have a question.
Anna Neilan is a Family Lawyer at Farrar Gesini Dunn, Canberra Office
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