Prenuptial agreements tend to be thought to be the only acumen of multi-millionaires looking to secure their fortune from gold-diggers. But of course, it can do just that: there’s little reason to warrant giving away half of the possessions you owned prior to the marriage. The truth, on the other hand, is that prenuptial agreements can be a sensible and prudent investment for both parties.
After all, in the miserable situation your marriage fails, would you rather the discussion about the splitting of your resources occur when you both love each other, or afterwards?
Consequently, the prenuptial agreement helps you both to secure the exact property (whether real or private) that you most value. It's also possible to use it to know how the two of you will be covered following the marriage: whether assistance is to be given, and the amount. Or, it could interest who gets the family pet, since it’s difficult to split a dog.
Basically, the prenuptial agreement prevents either party signing up to the Family Court over a topic that the agreement addresses. This minimizes legal fees, court fees and your valuable time.
How Would You Develop a Binding Prenuptial Agreement?
Unlike standard contracts, prenuptial agreements have very distinct forms that have to be followed. It's really to make it simpler for these agreements to hold up in court. The specific requirements are mentioned in section 90G of the Family Law Act, but usually:
1. the agreement must be published. An oral agreement won’t be sufficient. It's really as they are quite intricate reports, and specificity is important;
2. the two of you must receive independent legal advice from a legal practitioner. This advice must tell you both what the agreement appears to you, with respect to your rights, and the rewards and downsides of the agreement. It is suggested you get this advice written;
3. the agreement must include a clause revealing you have each provided such advice;
4. a signed certificate from the legal practitioner attesting to this advice must be affixed to the agreement;
5. each party must sign the agreement; and
6. each party must have the original, or a copy of the main prenuptial agreement.
However, even when these steps happen to be satisfied, prenuptial agreements - like all financial agreements - are not guaranteed. There are circumstances in which they can be overturned, and as a result, it is important you have a lawyer draft the prenuptial agreement for you, or at least, get them help you through the entire whole process. A brief list of a few of these circumstances includes where:
1. Any of the above formal steps have not been achieved;
2. Either party neglected to show, or obscured or materially misconstrued the scope of their possessions and resources at the valuable time the agreement was signed;
3. Either party involved in fraud in receiving the agreement, or entered into the agreement to defraud the other, or a third, party;
4. Either party active in unethical behaviour in getting their partner to sign the prenuptial agreement;
5. The agreement is impracticable, indefinite, unclear, or is otherwise struggles to be completed;
6. A change has occurred relating to a child which will cause that child to suffer hardship.
Your legal practitioner will also be able to tell you of any potential problems with the agreement. As an illustration, section 90F overturns any clause that purports to prevent support payments if one of the parties is not able to financially support themselves when they signed the agreement. Or, the entire prenuptial may be void if you fail to show the full scope of your assets, or the agreement is not yet determined and indefinite, or there was unethical or deceitful behaviour that's involved.
Do Prenuptial Agreements Persist Forever?
Well, all depends. By their nature, prenuptial agreements do persist, even beyond the death of either party. You can set precise conditions for what occurs in the experience of your death, but normally, your belongings will be left to your beneficiaries and not your significant other.
On the other hand, that doesn’t mean prenuptial agreements cannot be changed if circumstances change, or you both want to get a new agreement in some way. You and your partner, as the parties to the agreement, have every right to replace the agreement if, and when, you so choose. Take note that you need to properly eliminate or revise your prenuptial agreement.
Your legal practitioner can advise you of all of these intricacies when you receive advice as to the financial agreement. This will help ensure it is binding, and provide the crucial security measures to the two of you should the relationship fail.
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