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THE LEGAL EAGLE - LAW MADE EASY
Family Law

All about prenups…and other financial agreements

vintage-pre-nupWhat exactly is a pre-nup?

Australian couples can plan for their future rights (and responsibilities) with a binding financial agreement. Once something is binding it is difficult, although not impossible, to change or overturn it.

Check out HERE what Aussie law says about these agreements

A financial agreement is basically a contract which you and your partner make. If you are in a de facto relationship, you can make it at the beginning of your relationship or at any time during the relationship.

Marrying couples use to call these agreements “pre-nups” because they were made before the start of a marriage. These days both soon to be married, married and de facto couples can make theses agreements at any time in their relationship that suits them.
These agreements take into consideration a range of issues outlined in the Family Law Act like:

  • How in the event of a relationship breakdown, all or any of the property or financial resources of either or both of the parties is to be dealt with.
  • The maintenance of either party during the relationship and/or after dissolution of the marriage or the end of a de facto relationship.
  • Any incidental, ancillary or other matters to those above.

Cohabitation agreements or de facto agreements, that confirm a person’s non-financial and financial rights when the de facto relationship comes to an end, are also recognised.

How do you create a Pre-nup or binding financial agreement?

♦ You cannot get the same lawyer to act for both of you with financial agreements.
♦ You will each need your own lawyers to give legal advice about the effect of any potential agreement on your future rights (particularly in any future property settlement if your marriage or relationship breaks down) and about any disadvantages in making such an agreement.
♦ The agreement won’t be valid if you don’t get this advice.

♦ Either before or after signing the agreement, each party is to be provided with a signed statement by the legal practitioner stating that the advice was provided to that party.

♦ A copy of that statement is then given to your partner or their lawyer.

♦ Both of your lawyers will need to take detailed instructions about your financial circumstances, future intentions (eg regarding children), contributions already made to the property, estate planning requirements (eg protection of children from other relationships) and the financial agreement you both wish to enter. In disclosing all of your assets and liabilities, valuations are normally obtained and accountants are often used to make sure things add up

♦ Your lawyers must provide each of you with a detailed letter of advice, so you understand what such an agreement means and that it is binding.
♦ The agreement is then drawn and negotiated between the two of you to iron out any concerns.
 When settled, the agreement is signed by the parties.

Good agreements mean preparation, preparation, preparation

Both Before you can make your agreement, your lawyer will need detailed information about:

♥ Your assets, liabilities, businesses, trusts, superannuation/pension entitlements etc (and you need to be honest and not hide or leave out details) by providing statements and valuations. Where this isn’t possible it’s important to give a fair estimate of the value of any other things.

♥ Details of your employer, salary and entitlements. It is important to provide tax returns to prove this.

♥ Your personal details (including your previous marital status, details of any children).

♥ You and your future spouse or partner’s intentions about the division of your property if you separate. It’s also sensible for any agreement to provide an additional settlement for any financially disadvantaged party. (eg. the partner who may have no income)

It is simple common sense if you want a strong financial agreement to avoid being mean spirited. Make reasonable provision for your partner if you have greater wealth by sitting down and negotiating this with them. Each of you should also assess what’s offered with your lawyer so you can have a non-emotional mind overseeing any negotiations.

But doesn’t it take the romance out of the relationship?

While this may seem unromantic, making a financial agreement promotes trust, certainty and transparency about financial matters between both of you. It can actually be part of a plan for a successful marriage or de facto relationship. The agreement provides a reference point for both of you and reduces the chance of disputes arising about financial matters during the relationship.

Many couples consider that this sort of agreement gives them real peace of mind by clearing the air over what can sometimes be a sensitive topic to discuss.

vintage gay couple 2Cost

Financial agreements often require much research, detail, checking and confirming and reconfirming with each party, so they are not easy things to construct. Make sure you both find lawyers with skills in this area and ensure you leave enough time to get the agreement drawn up and agreed to. One lawyer in this field has advised that they can start at $5000, and if they’re really complex agreements, it could be more than twice that.

Also, if you’re getting married, it’s best to start the process at least 6 weeks before the wedding. For de facto couples, you should get your financial agreement done as early as possible.

Financial agreements can be changed as your relationship changes

Think of your financial agreement as an evolving document. It may begin as a ‘pre-nup’ but it can be changed and updated if the dynamics change. Good examples are if you have children, or if either or both of you become wealthier. Changes in circumstances such as hard times or sickness may require the agreement to be revised.

Talk to your lawyers about having a revision clause in your agreement so that from time to time you can review and change it to more suit your circumstances. It’s important that the agreement remains fair and reasonable.

Can a pre-nup or financial agreement be overturned?

You cannot be provided with a cast-iron guarantee that your agreement, once entered, will not be subsequently set aside by the Family Court.

The only way a court can make orders for property settlement and spousal maintenance despite an agreement is if the court sets aside the agreement. The law has a number of grounds to set aside an agreement.

Click here to see what the law says on this

The main grounds  are:

♦ An agreement was obtained by fraud. For example, one spouse fails to disclose a matter material to the agreement such as ownership of assets / businesses.

♦ One or both of you entered into the agreement for the purpose of defrauding or defeating a creditor of either of you. This means that you can’t use a binding agreement to divert assets away from creditors, or a trustee in bankruptcy.

♦ The agreement is void, voidable or unenforceable. For example, the requirements for a binding agreement were not fulfilled and these are complicated which is why you both should consult with a lawyer to get everything right in the eyes of the law.

♦ Since the agreement was made, a material change in circumstances that relate to the care, welfare and development of a child of the marriage has occurred.  As a result of the change, the person who has caring responsibility for that child, will suffer hardship if the agreement is not set aside.

♦ The agreement was signed because of pressure, harassment or some other form of unfair conduct (eg ‘gunshot signings’ of an agreement on your wedding day).

wedding money prenupFuture changes to the law about financial agreements

Financial agreements are out-of-court, private agreements between the two of you outlining how property and other financial matters will be dealt with in the event of the breakdown of a marriage or de facto relationship. It’s always disappointing when Courts get involved due to uncertainty.  The downside of this is delays and added cost for both parties.

There is a Bill before the Parliament that will hopefully resolve uncertainties around requirements for entering into, interpreting and enforcing agreements. This new law aims to introduce a statement of principles to outline the binding nature of these agreements to offer certainty to parties.

These measures are intended to ensure that prospective, current or former parties to a marriage, or a de facto relationship, can take responsibility for resolving their financial and maintenance matters with certainty and without involving a court.

The Legal Eagle will keep you updated on whether this new bill passes and becomes law.

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Family Law

Help to save your marriage or relationship

unhappy couple

How can relationship counselling help couples?

• If you and your partner want to save your relationship, counselling allows you to explore your problems with the help of an independent counsellor or therapist who won’t take sides.

• You can learn new ways to recognise and resolve conflicts as a result of the tools provided by the therapist.

• Both of you can learn how to improve the way you communicate with each other that may have made your past interactions not very pleasant. For example, it’s not uncommon for couples to reach a point where you both can lose the ability to be vulnerable and trusting of one another. Counselling can help rebuild that trust.

• It can help you decide whether to rebuild your marriage and make a renewed commitment, or clarify the reasons why you need to separate or end the marriage.

For relationship counselling to be effective, both of you need to be willing to take responsibility for reaching this point in the relationship, accept each other’s faults, and be motivated to repair the relationship.
It’s also important to have realistic expectations. It often takes more than a few sessions to shed light on why things aren’t working, and to begin the process of change.

So if you’ve reached a bump in the road but still want to continue your journey together, then read on!

Relationship Counselling

Relationships Australia  offers relationship (and family) counselling.

Relationship Courses

Relationships Australia also offer some great courses to support people in developing  relationship skills or to offer guidance and support for the difficult times.

Most of their counselling services are conducted face-to-face, but they also offer online and telephone counselling for people in remote areas (in some states) and for anyone with special needs. They have even been known to offer ‘farm gate’ services  at clients’ homes in remote or rural areas.

couple embracesCounselling can help a couple to:

  • Understand the relationship they currently share
  • Rediscover why they were attracted in the first place
  • Find out what they now want from their relationship and from each other
  • Understand how they contributed to whatever their relationship has become
  • Discuss what they feel about each other now
  • Discuss what they are prepared to do to make this relationship work.

Their counsellors don’t:

  • Make judgements on who is right or wrong;
  • Take sides;
  • Tell clients what to do;
  • Persuade people to stay together or to separate.

But they do provide a great environment to work things out.

Cost

Cost is always a concern and you will be pleased to know that Relationships Australia are a non-profit organisation. Because of this, they have a real commitment to providing affordable services to couples needing counselling.

Their fees vary slightly across different states and territories and are either a fixed rate, or else determined on a sliding scale based on gross household income and number of dependents. So if you and/or your partner on a low income, pension or benefit that will be taken into consideration when calculating the cost (if any).

Also, if the only time you can both make it is after work, there is a surcharge on most after-hours appointments. Their caring staff will inform you about the costs involved when you call for an appointment.

Relationship Australia’s services are for all members of the community, regardless of religious belief, age, gender, sexual orientation, lifestyle choice, cultural background or economic circumstances.

Give then a call if you need help in solving your relationship problems:

1300 364 277 (9am-5pm  Mon-Fri)

(Smaller regional offices may have more limited hours.)

2 courses that may offer you some assistance are:

  • Building Couple Relationships Program
  • Self Esteem and Communication Course

Cost of courses

Fees are usually on a sliding scale depending on your income, and concessions and fee waivers are available for low income earners. Aboriginal and Torres Strait Islander persons are not required to pay fees, but may make a donation if they so wish.

Give them a call about these courses if you think they would suit you both more:

1300 364 277 (9am-5pm  Mon-Fri)

Family Relationship Centres

These are Government-funded centres (mainly run by Relationships Australia), offering a place where all Australian couples (and families) can go to access information and advice with confidentiality on:
  • Building and strengthening existing relationships
  • Early intervention and prevention services
  • Child-friendly services for families in conflict
  • Family dispute resolution services
  • Parenting plans
  • Re-partnering and stepfamily arrangements
  • Child-focused workshops and information and referral
  • Child-inclusive workshops.

Family Relationship Centres also offer a range of services and programs, which are aimed at families at all stages of their life, including people starting relationships, those wanting to make their relationships stronger, those having relationship difficulties and those affected when families separate.

You can also use their website to find a registered family dispute resolution provider

Check out your nearest location HERE or give them a call on the line below

Give them a call if you need information about services to help people maintain healthy relationships or family relationship issues.

Your call will be treated as anonymous and confidential.

1800 050 321   (8am-8pm, Mon-Fri & 10am-4pm on Sat)

Mensline

MensLine  is the national telephone and online support, information and referral service for men with family and relationship concerns. The service is available from anywhere in Australia and is staffed by professional counsellors, experienced in men’s issues.

Confidential, anonymous and non-judgmental support is offered as well as coaching and practical strategies for managing personal relationship concerns.

Don’t keep your worries bottled up, it just isn’t worth it, they are a great organisation and really would like to hear you out, and help make your relationship stronger.

Give them a call for support and information regarding your family and relationship concerns.

1300 78 99 78   (24/7 – Nationwide)

Worried about violence?

It’s great that you want to save your relationship but if it’s suffering because of the effects of sexual assault, domestic or family violence, have a chat to the professionals at 1800RESPECT  (1800 737 732).

Violence, whether physical or emotional, is never acceptable in ANY relationship.

Anonymity and confidentiality is assured with crisis and trauma counselling service offered around the clock.

Give them a call for support and counselling if you have even the smallest concerns about violence towards you and/or the children.

1800 737 732   (24/7 – Nationwide)

If you are feeling unsafe right NOW:   CALL 000   (24/7)

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Family Law

Family Law – The Big Questions

vintage-family-photos-7

 

This is the FAMILY LAW section of The Legal Eagle

I imagine you’re here because you’re a little anxious about something to do with your relationship or your marriage, and you want some easy to understand information about what direction you should head in, and your rights under the law in Australia.

Take a look at the questions below and see if they apply to you. Each question has a link to answers and resources that may help you. By the way, whenever I have to mention a ‘legal’ term that sounds like it comes from another planet, I promise it will be explained to you in plain English.

If your question isn’t here just drop me a line with the form at the bottom of this page… and please be assured that I will be the only one to see your enquiry. Your privacy will be protected.

MARRIAGE AND SEPARATION

I want to save my marriage. What help can I get? 

What are prenups and financial agreements and are they valid?

How do I  legally separate from my spouse?

Divorce Court 1948       DIVORCE COURT 1948

What is the process for getting a divorce?

What happens to my kids when I separate or divorce?

What happens to my home, property, super and pets if I divorce?

DE FACTO RELATIONSHIPS (Including same sex relationships)

How do you end a de facto relationship? 

Can de facto couples have prenup of financial agreements?

What happens to my kids when the relationship ends?

What happens to my home, property, super and pets when your relationship ends?

DIY  DIVORCE  AND SELF REPRESENTATION

Is it possible for me to do my divorce paperwork without the need for a lawyer?

CHILD SUPPORT

When am I entitled to child support?

TIPS TO SURVIVING YOUR BREAKUP AND STAYING SANE

Divorce and separation – the survival kit

FAMILY VIOLENCE

In the eyes of the law, what is family violence. Where can I get help?

INTERNET LOVE SCAMS

Learn how to spot a romance scammer and what you can do if you were scammed

SEPARATION AND SOCIAL MEDIA USE

Family Court and Social Media – Avoiding Trouble

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