Prenuptial Agreements

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A prenuptial agreement, or a prenup, is a binding contract between two people, which they sign and agree to before they marry.

Are they legal?

Yes, according the the Matrimonial Property Act they are binding if the essential properties of a binding contract are met.

Why Have a Prenup?

Most people know a prenup is intended to set out the engaged couple’s financial plan if the marriage breaks down, but it can include other matters.

In fact,it has been argued that negotiating a prenup has the potential to promote greater communication and happiness during the marriage, because it addresses uncomfortable but real issues that might pop up down the track anyway.

Broadly speaking, a prenup will cover:

  • How the property and other financial resources are to be dealt with following a divorce;
  • The conduct of either or both parties during the marriage; and
  • Any other matters that are relevant or unique to your situation.

In the unfortunate situation that your marriage does break down, a prenup will save you significant time, effort and emotional stress. Even more, a prenup does not have to be registered or approved by the court, so as long as the agreement is correctly drawn up, you have already completed the process.

Try and remember the following five tips when thinking about your prenup.

1. Don’t Leave It to the Last Minute

You should try and make sure that your prenup is signed at least thirty days in advance of your wedding, but the earlier, the better.

2. Be Precise and Have a Plan

It will be a lot easier to prove what belongs to whom if it is written down in the prenup. In the absence of a pre-marital agreement, the division of assets, among other things, will be left to the discretion of the court, and would cost significant time and expense.

For example, if you have inherited property you may want to state in the prenup whether the property shall remain in your name or shared jointly with your spouse.

Prenups are also a way to protect yourself and limit your responsibility in case either partner incurs any form of debt. Having an action plan to handle this kind of situation may be a blessing in disguise.

Whatever arrangement you want to agree on, make sure it is precise, and that it is written clearly.

3. Make It Fair

To ensure that it is upheld in court (thinking about the worst case scenario) make certain the provisions are fair.

4. Get Advice

This goes for both of you. The slightest hint of forced entry into a prenup may invalidate the whole agreement so it is best that both partners seek independent legal advice.

To ensure that your prenup is a binding agreement, it should:

  • Be signed by both parties;
  • Contain a statement that each party obtained independent legal advice;
  • Include a statement attached to the agreement, by the legal practitioner stating that their advice had been given; and
  • Be given to both parties to keep.

5. Keep Your Prenup Updated

Just like a will, your prenup may need to be updated if there has been a marital change. For example, if you would like it to include an agreement on child support or you have acquired another form of property.

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