Family Law – Pre-Nuptial or Co-habitation Agreements
We are increasingly being asked to prepare financial agreements for couples who are about to “take the plunge” or “walk down the aisle”. However, financial agreements are also available for couples who are living together whether or not they are married, and for couples who have separated.
In my experience it is not necessary that people want lawyers to prepare a financial agreement because they do not trust their partner.These days, perhaps people are more aware of their legal rights and responsibilities and therefore would prefer that they are upfront to one another about their respective financial positions and the preservation of the same.There are situations where one partner has been “taken to the cleaners” and therefore would prefer to have an agreement to preserve their hard earn savings.
“Pre-nuptial” or “Cohabitation” agreements are common terms that most people would relate to. The term that the Courts use is “financial agreement”. The law regarding such agreements is governed by Part VIIIA of the Family Law Act (Cth) 1975. Unless the Agreement is properly prepared and certain requirements are met, the Agreement will have little (if any) value.
Some of the requirements are:
>> Both parties must fully disclose their respective financial positions. This includes their assets and liabilities;
>> Each must execute the Agreement of their own free will;
>> It is important that each understands all the terms of the Agreement and their effect;
>> Each MUST obtain a lawyer’s certificate; and
>> Obviously, the Agreement must be in writing. There goes the saying “a verbal agreement is worth as much as the paper it’s written on”.
There are other factors that may affect the Agreement and therefore may have consequences that must be considered by the parties. Some of those factors are:
>> Are there children of the relationship?
>> Has any party been unduly influenced by the other?
>> When was the Agreement prepared and executed?
>> Apart from getting married, are there other conditions associated with the Agreement
If the parties are getting married, it is best to get the Agreement drawn up and executed some months before the wedding day; a week or two before the “Big Day” is not advisable. The reason for this cautious approach is to avoid the argument of unconscionable conduct by one of the parties to the Agreement. As mentioned above, the parties may also enter into a cohabitation agreement after marriage.
If you are interested to know something more about Pre-Nuptial or Co-habitation Agreements and Family Lawyers then please visit our website www.laclawyers.com.au
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