Prenuptial Agreements Lawyer Sydney
Chatswood Family Lawyers Assist Clients in Drafting Prenuptial Agreements
A prenuptial agreement, also known as a Binding Financial Agreement (BFA), can help couples determine the division of property and assets if a relationship ends. These agreements provide clarity and security, helping partners protect their financial future and avoid costly legal disputes.
Contrary to some beliefs, a prenuptial agreement is not an expectation of divorce. Instead, it is a practical way to ensure both parties clearly understand their financial rights and responsibilities. It provides peace of mind, especially for individuals with significant assets, business interests, or future inheritances.
What is a Prenuptial Agreement?
Put simply, a prenuptial agreement is a legally binding financial agreement that two potential spouses enter into and sign in anticipation of their upcoming marriage. A prenuptial agreement will usually spell out in detail what division of assets and property the parties agree to in the event the parties separate. A prenuptial agreement can also specify whether one party will receive spousal maintenance from the other and, if so, in what amount and under what circumstances.
A well-drafted prenup can help:
- Protect pre-marriage assets, businesses, or inheritance
- Clarify financial responsibilities during the marriage
- Reduce disputes and legal costs in case of separation
- Provide security for children from previous relationships
Who Should Consider a Prenuptial Agreement?
Prenuptial agreements are not just for the wealthy. They are valuable for anyone who wants financial clarity and protection.
You may benefit from a prenup if:
- You own a business or have significant financial investments
- You expect to receive an inheritance or family wealth
- You have children from a previous relationship and want to protect their inheritance
- You and your partner have significantly different financial situations
- You own property before marriage or want to protect future earnings
If any of these apply to you, a prenuptial agreement can provide financial security and prevent future uncertainty.
Is Any Prenuptial Agreement Enforceable?
While parties are free to include whatever (legal) conditions they wish, a premarital agreement must generally:
- Involve both parties in making a full and fair disclosure of their separate assets and liabilities prior to the agreement being signed;
- Must be between parties who obtain independent legal advice provided by a legal practitioner before the agreement was signed; and
- Not be presented to the other spouse on the eve of marriage but rather with enough time for the spouse to review and fully consider the terms of the agreement.
A prenuptial agreement that fails to meet these three basic requirements is in danger of being disregarded and set aside by a family court if the agreement is challenged in a family law proceeding. Having legal representation during the drafting and signing of a prenuptial agreement can help insulate the agreement from such attacks.
Chatswood Family Lawyers is committed to providing well-informed legal counsel to clients wishing to protect their assets through a prenuptial agreement as well as partners asked to sign a prenuptial agreement by their significant others.
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The Process of Drafting a Prenuptial Agreement
Step 1: Initial Consultation
Step 2: Full Financial Disclosure
Both partners disclose their assets, liabilities, and income.
Step 3: Drafting the Agreement
We create a legally sound prenup tailored to your needs.
Step 4: Independent Legal Advice
Each party must receive legal advice before signing.
Step 5: Signing & Finalisation
Once both parties agree, the document is legally binding.
What Happens If You Don’t Have a Prenuptial Agreement?
Without a prenup, your assets will be divided according to Australian family law principles in the event of separation. This means:
- Courts will assess financial contributions (income, property, business assets) and non-financial contributions (raising children, homemaking, etc.).
- A lengthy and costly legal process may be required to reach a financial settlement.
- Assets, including businesses or inherited property, may be subject to division.
A prenuptial agreement gives you more control over financial decisions and reduces uncertainty in case of separation.
Do I Need a Lawyer to Represent Me?
Whether you’re interested in drafting a prenuptial agreement or your spouse has presented you with one, an experienced family lawyer can help you understand and protect your rights. A lawyer with knowledge of family law can look for any potential issues and help ensure that your prenuptial agreement contains the necessary language and requirements to protect your assets appropriately.
Many prenuptial agreements do not stand up in court, and it’s not uncommon for ex-spouses to challenge them. Accordingly, drafting your prenup with the help of an experienced family lawyer can help you prepare for and safeguard against potential legal disputes during the divorce.
Contact Our Chatswood Prenuptial Agreement Lawyer Today
Before you sign on any dotted line or rush down the aisle, allow one of our Chatswood prenuptial agreement lawyers to help ensure that your “happily ever after” moment will not turn into a future “what was I thinking?”
Contact Chatswood Family Lawyers online, by email at enquiries@chatswoodfamilylawyers.com.au or by phone at (02) 9412 4500 for experienced assistance.
FREQUENTLY ASKED QUESTIONS
Are prenuptial agreements legally binding in Australia?
Yes, prenuptial agreements are legally enforceable under the Family Law Act. However, they must meet specific legal requirements, including full financial disclosure from both parties, independent legal advice before signing and no evidence of coercion, fraud, or unfairness in the agreement. If these conditions aren’t met, the agreement may be challenged in court.
What can a prenuptial agreement cover?
A prenuptial agreement can outline how assets, debts, and financial responsibilities will be managed in a relationship breakdown. It can cover property ownership, family business assets, investments, superannuation, spousal maintenance, and inheritance protection for children from previous relationships. However, prenuptial agreements cannot include child custody or child support arrangements, as these must be determined based on the child’s best interests at the time of separation.
Do both parties need a lawyer to sign a prenup?
Yes, under Australian law, both partners must receive independent legal advice before signing a prenuptial agreement. Each party’s lawyer will ensure the agreement is fair and legally sound, explain the legal rights and consequences of signing, and provide written confirmation that legal advice was given. Without independent legal advice, the agreement may be considered invalid.
Can a prenuptial agreement be changed after marriage?
Yes, a prenuptial agreement can be amended after marriage if both parties agree. This is done through a new Binding Financial Agreement, which replaces or updates the original prenup. Common reasons for updating a prenuptial agreement include a significant increase in assets, such as business growth or inheritance, the birth of children, or changes in financial responsibilities or investments.
Can de facto couples have a prenuptial agreement in Australia?
Yes, de facto couples can enter into a Binding Financial Agreement (BFA), which serves the same purpose as a prenuptial agreement for married couples. Under Australian law, de facto relationships are recognised similarly to marriages when it comes to asset division, financial support, and property settlements. A de facto prenuptial agreement allows couples to decide in advance how their assets will be divided if the relationship breaks, protecting their financial interests and avoiding lengthy legal disputes. It can cover property, business assets, superannuation, and even provisions for spousal maintenance.
What happens if my partner refuses to sign a prenup?
A prenuptial agreement must be voluntary, and no one can be forced to sign. If your partner refuses, it is important to have an open and honest conversation about why you want a prenuptial agreement, explaining how it protects both parties and provides financial clarity. Seeking legal advice together can help address concerns and clarify any misunderstandings. If an agreement cannot be reached, alternative legal strategies may be available to protect your assets.
Can a prenup be challenged or overturned in court?
Yes, a prenuptial agreement can be set aside if it was signed under duress, pressure, or fraud, if one party failed to disclose all financial assets, if the agreement is unfair or unconscionable, or if there was no independent legal advice before signing. To reduce the risk of a challenge, it is essential to work with experienced prenup lawyers to ensure the agreement is properly drafted and complies with all legal requirements.
What if we don’t have a prenuptial agreement?
Without a prenuptial agreement, assets will be divided based on Australia’s family law system, which considers each partner’s financial and non-financial contributions, future needs such as income disparity or caregiving responsibilities, and the impact on children and dependents. This process can lead to lengthy and costly legal disputes. A prenuptial agreement provides certainty, protects assets, and helps avoid unnecessary conflict.