Pre-nuptial Agreements
Under Family Law, financial
agreements between spouses are influential on decisions of the Family Court
but are not binding. However, this may soon change. If proposed new laws are
passed, for the first time couples will first be able to enter into binding
financial agreements whether that be before, after or during a marriage.
The new laws are designed to
allow couples greater control over determining the use, ownership and division
of their property. To ensure that the agreement is in their best interests,
each partner would be required to seek independent, legal advice before
entering into it.
Presently financial agreements,
including pre-nuptial agreements, are helpful in achieving a property
settlement between married couples because:
1. the agreement sets out
clearly an agreed set of facts concerning pre-marriage contributions to the
assets and financial resources of the marriage;
2. the agreement sets out the
couples intent regarding the ownership, use and division of those assets.
The Family Court currently can
override a financial agreement. By considering all the circumstances relevant
to determining a just and equitable property division, the Family Court may
arrive at a different result. The financial agreement, can, nonetheless, be a
very influential consideration when the Family Court is making this
determination and sometimes the Family Court may uphold the agreement.
If the legislation to make
financial agreements binding is passed by Parliament, then the Family Court
will be required to enforce them.
The Family Court will not be
able to change the binding financial agreement if it is considered unfair, but
there will be safeguards in the new laws that will allow for the agreements to
be set aside in some circumstances. One of those circumstances will be if one
of the partners is caring for a child and will face hardship as a result of
the agreement.
It is important that a
pre-nuptial or financial agreement is considered carefully and that proper,
independent legal advice is obtained before one is entered into. If this is
done, then a financial agreement, whether it be binding or only influential on
the Family Court, can be a very useful tool for assisting couples in choosing
how to regulate their own financial relationship.
Antoinette Kordell
Solicitor
Accredited Family Law Specialist
BJT Legal
