Pre Nuptial, Section 90 & Cohabitation Agreements

If you are really concerned about your future relationship and what would happen if there is a relationship breakdown, then a contract outlining everyone's entitlements may provide both parties with the confidence they need to securely move forward. Part VIIIA of the Family Act 1975 (Cth) states the law in relation to financial agreements.

Agreements under section 90B are usually referred to as the Pre Nuptials. Financial Agreements during marriage but prior to separation are covered under section 90C. Further, section 90C Financial Agreements can be used after separation as can Financial Agreements under section 90D. Call to discuss each of these options.

There are many advantages and disadvantages to using a Pre Nuptial Agreement. Often those who seek such agreements have a large asset base compared to the other party. Fairness is the key to successfully reaching an amicable agreement. It is now possible to reach agreement with your spouse/partner about how your property is to be divided if you separate, whether or not you are married. Binding Financial Agreements and Prenuptial Agreements seek to exclude the jurisdiction of the Family Law Act if you are married or intend to marry.

Cohabitation Agreements can be used if you have been in a de facto relationship for 3 years or there are children from the relationship. These agreements are also binding and they exclude the jurisdiction of the De Facto Relationships Act.

By entering into either of these agreements it is possible to achieve a level of certainty regarding the distribution of assets should parties separate. Be aware that poorly drafted agreements based on inadequate instructions from you will not protect you. There are certain unforeseeable events in the future that will affect what you can protect and what you cannot protect. It is essential to receive legal advice if the agreements are to be binding. It is also essential that all parties give full and proper disclosure of all assets and liabilities at the time of preparing the agreements for the agreement to be binding.

If you have already signed a pre nuptial and believe it is inherently oppressive or unfair, you should contact us immediately in respect of reviewing the agreement with a view to advising you of your chances to challenge it. There are many matters often overlooked in the drafting of such agreements or your circumstances may have changed in ways that neither party had anticipated. The right advice early on may save you prolonged and unnecessary litigation or we may be able to negotiate an improved outcome on the pre nuptial conditions.