Prenuptial Agreement Lawyers Sydney

Yes, if they meet the requirements of the Family Law Act 1975 (Cth). Both of you must sign, and each of you must receive independent legal advice before signing. Each lawyer must also provide a signed statement, which is given to the other party (s 90G; s 90UJ). An agreement that misses a step may not be binding.

Yes, but only on the grounds set out in the Act (s 90K; s 90UM). These include fraud or failure to disclose, duress or undue influence, unconscionable conduct, impracticability, and a material change in circumstances affecting a child that would cause hardship. No prenup is beyond challenge, which is why how it is made matters as much as what it says.

Yes, but not by simply agreeing between yourselves. A financial agreement can be ended only by a new financial agreement that terminates it, or by a written termination agreement (s 90J; s 90UL). Either needs the same independent legal advice and signed statements as the original. If your circumstances have changed, the usual approach is a new agreement that replaces the old one.

No. Infidelity is not one of the grounds for setting aside a financial agreement under s 90K or s 90UM. Australian family law is also "no fault": a divorce depends only on the marriage having broken down irretrievably (s 48).

Yes. De facto couples can make a binding financial agreement before moving in together (s 90UB) or during the relationship (s 90UC). If you later marry each other, the de facto agreement stops being binding (s 90UJ(3)), so you will need a new one.

Not automatically. To be a binding financial agreement here, an agreement must state that it is made under the relevant section of the Family Law Act (s 90B(1)(b); s 90UB(1)(c)). It must also meet the signing and independent advice requirements in s 90G or s 90UJ. If it does not, it is not a binding financial agreement under Australian law.

For de facto couples there is a further rule. A de facto agreement can only be made under the Act if you both lived in a participating Australian state or territory when you made it (s 90UA). If you have an agreement from overseas, have it reviewed. You may need a new Australian agreement.

Without an agreement, the house can be included in a property settlement. The court can make orders about all the property of either party, including property owned before the relationship (s 79; s 90SM for de facto couples). Your contribution in bringing it into the relationship is taken into account, but there is no rule that you keep it. A prenup can set out in advance that it stays yours.

Yes. A prenup can deal with property either of you acquires later in the relationship, including an inheritance you have not yet received (s 90B(2)(a); s 90UB(2)(a)). It should be drafted to cover what happens if the inheritance is later mixed with joint assets, such as being used to pay down the family home.

Not one that is binding in the ordinary way. Independent legal advice for each of you, and a signed statement from each lawyer, are requirements of the Act (s 90G; s 90UJ). If a step was missed, a court can still declare the agreement binding, but only if it is satisfied it would be unjust and inequitable not to (s 90G(1A); s 90UJ(1A)). That means going back to court, which is what the agreement was meant to avoid.

Each of you needs your own lawyer, and you will both need to make full financial disclosure. The agreement can turn out less favourable to one of you than a court-ordered settlement would have been, which is why independent advice is required. It also needs reviewing as your life changes, and it can still be challenged on the grounds in the Act.

Not in itself. Many couples see it as an honest conversation about money before they commit. What causes problems is how it is raised. Raising it early, with time for both of you to get advice and ask for changes, makes the agreement fairer and much harder to challenge later.

The Act does not set a minimum period. But an agreement signed close to the wedding is more exposed to a challenge for pressure or unconscionable conduct.

The leading case is Thorne v Kennedy [2017] HCA 49. About 11 days before the wedding, the bride was told it would not go ahead unless she signed. She first saw the terms of the agreement the next day. Her own lawyer advised her not to sign. She signed four days before the wedding, and signed a substantially identical agreement after it. The High Court set both agreements aside for unconscionable conduct, and a majority also found undue influence.

The High Court listed factors that may be prominent when deciding whether a prenup or postnup was signed under undue influence:

• Whether the agreement was offered on the basis that it could not be negotiated
• The emotional circumstances, including any threat to end the engagement or marriage
• Whether there was time for careful reflection
• The nature of the relationship
• The relative financial positions of the couple
• The independent advice received, and whether there was time to reflect on it

The lesson is that independent advice alone does not save an agreement signed under pressure. The time to start is well before the wedding is booked, not in the weeks before it.