Against all odds you have found each other, you are in love and know without a shadow of a doubt that you want to spend the rest of your lives together.
The proposal was perfect, the ring made all your friends “oooh and ahhh” and all you can think about is planning the big day – until you are asked the other question … “Honey, will you sign my pre-nup?”
Today, about one in 10 Australian couples opt for a pre-nuptial agreement before saying “I do”.
Maybe that’s not surprising considering 30 per cent of all first marriages end in divorce according to the Australian Bureau of Statistics.
So what should you do and what you should know if your partner asks you to sign a pre-nup? What are your legal rights and what does it mean for your future?
In Australia a pre-nup is simply a binding financial agreement that sits under the Family Law Act. It’s a legal contract that can be entered into by married couples, same-sex couples and those in de facto relationships.
It is an agreement between both parties that requires full disclosure of their financial position and assets at the time, and is designed to provide certainty to both parties before entering into marriage or a long-term relationship.
Paul Hunt from e.law Legal Services lists the top five things you should be aware of before entering into one.
1. There must not be any coercion or pressure from the asking party or their families. It is illegal to force any individual into a pre-nup under duress. A pre-nup must be entered into willingly by both parties.
2. Each party must seek independent legal representation and advice. A pre-nup cannot be created for a couple by the same legal practitioner.
3. A pre-nup must be drafted by an Australian lawyer. Any agreements designed by legal professionals who are not registered practitioners in Australia will be inadmissible under the Australian Family Law Act.
4. A pre-nup must be fair and reasonable for both parties and both should feel as though they can specify certain clauses, such as future children, pre-nup validity after a certain number of years of marriage or being together and what each party contributes during the marriage or relationship.
5. If at any stage the process doesn’t feel right, don’t do it!
It’s going to be easier if both parties have communicated in-depth about what they feel is fair and reasonable.
A trip to the lawyer can be an expensive exercise. If the party being asked to sign the pre-nup is not in a financial position to pay for these negotiations, they have every right to ask the other party to cover their costs.
Honest discussions should take place about the emotional impact of signing an agreement like this. For many people, the idea of being asked to sign a pre-nup raises questions of loyalty and trust.
You have every reason to ask why, and deserve to be provided with a valid answer that eradicates all doubt.
Hunt adds: “Before seeing a lawyer both parties should agree on what they are and aren’t comfortable with, which ultimately will keep down the costs if both have agreed on what they think is fair as opposed to the lawyers arguing it out.”
This raises a valid issue … communication, which is the key to any long and happy relationship or marriage.
After all, if you can’t openly communicate before agreeing to a long-term commitment or marriage, then it isn’t really going to work.
Apart from the emotional and financial implications of setting them up, there are questions surrounding the validity of pre-nups.
Says Hunt: “While a pre-nup is a binding agreement that is enforceable, it can be undone. While that can be a costly exercise, a pre-nup is really a planned process of dealing with financial issues and assets if there is a breakdown, in the hope of avoiding costly court battles in the future.”
Is a pre-nup just a necessity of modern life or a passion killer?
Does it undermine the romantic notion that love will conquer all or is it just a reality that is required in a life where there is so much uncertainty?
If we fail to plan, are we planning to fail?
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