Pre-nuptial & cohabitation agrements
Pre-nuptial agreements and cohabitation agreements are referred to as Financial Agreements. You may make a Financial Agreement during or in contemplation of marriage or a de facto relationship. The Agreement details how property and financial resources and spouse maintenance will be dealt with in the event of a breakdown of the marriage or de facto relationship. Financial Agreements may also be made after a marriage or de facto relationship to finalize financial matters.
We suggest that you start by considering the following:-
Do you need an agreement?
Agreements are usually done if one party has significantly more assets than the other, where one party has significant debts, where one party has financial responsibility for others and their capacity to meet the obligation needs to be protected or where both parties have previously been involved in a relationship breakdown that has resulted in costly court proceedings.
Anyone can have an agreement, but not everyone wants one. Some people feel that it compromises your mutual love and trust, others that it spares you the acrimony of property proceedings in the event of a relationship breakdown.
What are you trying to achieve by the agreement
Do you wish to protect assets that you have at the commencement of the relationship from claims by your partner?
What if joint funds are to be used to meet mortgage payments on your property?
Do you intend that assets accumulated during your relationship are owned jointly?
Do you intend that assets accumulated during your relationship are owned by the person who paid for them?
Do you want to make provision for spousal maintenance?
Do you intend to have children? Do different provisions apply if you do?
Do you intend to live financially separate lives? If so, do you both have income protection insurance and the like to enable you to meet expenses in the event of illness or unemployment?
Do you intend the agreement to last for the whole of your relationship or only for a certain number of years?
Do you want to review the agreement from time to time, or in the event of certain events?
How are you going to divide the property if you separate?
How are you going to come to an agreement
First of all, you must each be frank with each other about your present financial situation and what you want to achieve by the agreement. We suggest that you discuss the agreement openly and consider all the things that could happen to you during the relationship. Seek independent legal advice about what could happen if you separate, so that you know what the alternatives are. If you need to, enlist the help of a skilled mediator to help you resolve the sticking points. Leave plenty of time before you start living together to consider the agreement. Do not do it one month before you marry.
How do you make sure the agreement will be legally enforceable
The agreement should be drafted and signed in the presence of an experienced lawyer. It must be in writing. An agreement can be set aside if it is based on incorrect information which misleads the other party.
Each party must receive independent legal advice.
Try your best on the information you have available to you to make an agreement that is fair and reasonable.
Can the agreement be overturned by a Court
Courts have the capacity to set aside these agreements. There are a number of grounds which we will explain to you. The most significant are that one party has not been frank about their financial position at the commencement of the relationship or that a child or party with a caring capacity for a child will suffer hardship if the agreement is not set aside.
How much do these agreements cost
Like all legal matters, the cost depends on the case. We suggest that you make an appointment (initial consultation $330) and discuss the particular circumstances of your case. We can then give you a quote. It is unlikely, if we are responsible for preparing the agreement, that your costs would be less than $5,000. In some cases your costs may be significantly higher. Your costs will reflect the work done to achieve an agreement.