Why do you need a Prenup?
There is no absolute answer whether or not you should have a prenuptial agreement. Mostly, it depends on the couple’s personal and financial circumstances, understanding, preferences, stage in life, commitments and any other reason that requires an arrangement made before the wedding. Let’s not get into right or wrong debate! From a family lawyer’s perspective, it is just a cautious step to safeguard one’s interest.
Not everyone needs a prenup agreement either. If it is not your first marriage, and have kids from a previous marriage or de facto relationship, you may want to safeguard their interests by making enough financial arrangements. You may draw an agreement if you are expecting a large inheritance or you are part of your family business and want to keep your ownership a personal thing. If both the partners unequivocally think that financial aspects between them need to be kept clear and separate, they can no doubt have a prenup agreement ready.
You need not have oodles of money to be eligible to opt for a prenup. If you or your partner think to have such an arrangement will help you both lead a good life if ever you separate, then anybody can get a financial agreement drawn by expert family lawyers before or after the D day.
Legal Requirements of a Prenup
- The partners must take legal advice from two separate lawyers
- The agreement must be on fair and just grounds
- Both the partners and their witnesses must sign the contract
- The prenup must have a signed letter from lawyers that the partners have taken legal advice and understand the legal implications of the agreement in case they separate
Legal Outcomes of a Prenup
The prenuptial financial contracts hold a legal value. The court is most likely to take financial aspects of your married life the way it reflects in the agreement. In the nonexistence of a prenup, the judiciary will less likely to make your financial settlement claims, the way you intend to at the time of divorce.
However, the above is true when the court feels the agreement is not oppressive of any of the partner, is just and fair and adequate legal expertise is involved in the arrangement, AND both the partners know the legal and practical implication of the agreement.
If the agreement does not hold water in the above context, the disadvantaged partner can challenge the arrangement in court during the divorce settlement hearing.
Prenup and the Partners
Both the partners must reach an assent on the terms of the agreement. If either of you is against the idea or thinks unnecessary, you can have a thorough discussion bringing up your concerns. Our lawyers arrange for counselling from a psychologist if we feel that may help the couple view the agreement as a practical step than attaching emotional value to it. We don’t want to see marriages called-off either!
A strong understanding between the couple to keep prenup agreement and relationship on different platforms, help; say our seasoned family lawyers who have helped many couples realise the need and importance of a financial contract.
Having said that prenups cannot make up for everything in life. The unpredictability of life situations presents the partners a set of new challenges to address. To meet the uncertainty of life situations, the partners can keep the clauses of a prenup reworkable. For example, either of the couple or a child may become disabled for life, or a child may be born with special needs, illness of a dependent family member etc. demand revisits to the financial plans.
A prenup is an obvious choice for the people marrying for the second time or has children from previous marriage. We have seen that such couple are more open to talking financial aspects and drawing a logical decision in term of an agreement before marriage.
We always advise our clients to take a holistic view of having an agreement and decide for themselves whether or not they need it. This comes as a precursor because many couples opt for a prenup relying on the horror stories of divorce gone wrong from their friends and family. Every divorce case is different with different needs and objectives. Individuals must resolve whether their situation needs a prenup or not.
What aspects of finance a prenup can contain?
The prenup can be drawn to protect any or all of the below financial elements. The list is not exhaustive though; there can be many other things, the individuals regard as valuable that can add up to a prenup agreement.
- Real estate properties
- Family Business
- Pension entitlement
To sum up, a prenup is a highly potential legal tool to keep yours and your loved one’s interest intact if the relationship fails. However, it may go wrong if one uses it for an irrational, unjust and prejudiced reason. Clarity, understanding and realistic expectations of each other and the agreement is required to make use of this financial contract.
Reach our family lawyers in Melbourne to get legal advice and draw up a prenup for you.