Pre-separation Financial Agreement - Prenuptial and Cohabitation Agreements

If you are currently in a relationship, you and your partner can enter into a Financial Agreement which sets out how the property of each of you will be divided up, in the event that you separate. They are often referred to as Cohabitation, prenuptial Agreements or “Prenups”, which you may recognise.

A “Cohabitation Agreement” is for couples living together in a de facto or marriage.

A “Prenuptial Agreement” is for couples about to marry.

They are both types of binding Financial Agreements under the Family Law Act.

Download our free brochure here.

If you have questions you would like to speak to an experienced family lawyer about, please don’t hesitate to book a free 30 minute consultation with us through the Book an Appointment feature on this page or call us on 5576 9999.

What do they do?

The Agreement sets out how all of the assets, liabilities and superannuation of each of you will be divided up between you, should the relationship end.

They are often used to ensure that assets they came into the relationship with, such as a house, will be retained by them in the event that the relationship doesn’t work out and you later separate.

The Agreement can provide that a range of assets and liabilities are kept separate and that if the relationship ends, you can keep those assts and liabilities free from any claim by the other partner. This can include a range of assets such as cars, savings and superannuation, not just property.

You can also set out in the Agreement how you will divide up any assets which you buy together during the relationship as well

Why do I want one? Why would my partner want one?

They provide clarity and peace of mind to couples about their financial future.

There are a range of reasons why couples seek out a Financial Agreement, such as;

  • Anyone who has endured a costly and stressful property settlement with a previous partner will be keen to ensure that they don’t have to go through that process again. By agreeing with your partner or spouse about what will happen at separation before there is any dispute between you, you can remove the risk of a traumatic and expensive legal dispute if (despite both of your best intentions) your relationship later ends.
     
  • A Financial Agreement can provide certainty for people who have worked hard to get into the property market, or have accumulated wealth, to ensure that they don’t lose their hard-earned assets in a breakup. This can also be a big concern if one partner comes into the relationship with a lot of wealth, or a lot of debt.
     
  • Where one of both partners have children from a previous relationship. If you have assets you want to ensure are passed to your children rather than a new partner, these agreements can be used in conjunction with proper estate planning to ensure that certain assets are going to be retained by you if the relationship ends, so you can pass it onto your children.
     
  • Any gift or inheritances a partner has received or may receive from their parents or other family members can also be protected from property settlement. Many parents want to ensure that any hard-earned money they gift to their child, or any inheritance they can leave their child, will always belong to their child and not be taken from them by an ex-partner in property settlement.
     
  • A family business, or commercial business interest, can also be protected from property settlement. This is especially important for family businesses like farms, but any business can be shielded from the uncertainty and instability often caused by the breakdown of a relationship and the subsequent dispute over ownership or running of the business. A Financial Agreement can quarantine that business interest and provide certainty of ownership and rights.
     

Why do I want one?

They provide clarity and peace of mind to couples about their financial future.

This can be particularly important for people who have worked hard to get into the property market, or where there are children from a previous relationship. If you have assets you want to ensure are passed to your children not to your new partner, these agreements can be used in conjunction with proper estate planning to ensure that certain assets are going to be retained by you if the relationship ends so you can pass it to your children.

Partners who have endured a costly and stressful separation and property settlement with a previous partner are often keen to ensure that they don’t have to go through that process again. By agreeing with your partner or spouse about what will happen at separation before there is any dispute between you, you can remove the risk of a traumatic and expensive legal dispute if (despite both of your best intentions) your relationship later ends.

Are they binding?

If done properly, they can be upheld as binding contracts.

There are a range of technical requirements in order for the Agreement to be binding, if they are met then this means that if the relationship ends, neither you nor your partner will not be able to apply to Court for property settlement. You will be able to apply to Court to enforce the Financial Agreement. You therefore have certainty as to the outcome.

If the requirements are not complied with then the Agreement can be set aside. This means that the Court can decide how the assets, superannuation and liabilities of each of you will be divided up, or you have to reach an agreement all over again with your now former spouse.

Once signed, you cannot renegotiate or end a Financial Agreement without the consent of the other person.

Do I need a lawyer? Does my partner need a lawyer?

Yes.

In order for the Prenup or Cohabitation Agreement to be finding, both people must have independent legal advice from separate qualified lawyer as to;

  • the nature and effect of the Financial Agreement; and
  • the advantages and disadvantages to you of entering into the Agreement.

What do they cost?

We offer fixed fee pricing for simple, straightforward agreements to give our clients certainty in relation to their fees in relation to some Cohabitation Agreements and Prenuptial Agreements. Please see our fixed fee offers by visiting our page. Click Here. If you have a complex financial situation or agreement then our highly skilled lawyers are able to prepare and advise you, please contact us to discuss your circumstances and our fees.

If I still have questions?

Please don’t hesitate to book a free 30 minute initial consultation with one of our specialist family lawyers on this website or by calling us on 5576 9999.
CONTACTS FOR THIS AREA OF LAW
Andrew Smyth

Andrew Smyth

Commercial Law Court Work & Litigation Family & De Facto Law Wills and Estates
With 30 years’ experience working in and managing business, Andrew Smyth is sought after by industry and commerce for his specialist knowledge in structuring, regulatory compliance…
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Sarah Galvin

Sarah Galvin

Court Work & Litigation Family & De Facto Law
From Brisbane to Kent County, England, back to sunny Queensland, Sarah has amassed over 20 years legal experience, locally and internationally. In that time Sarah found…
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Isabella Phillips

Isabella Phillips

Court Work & Litigation Family & De Facto Law Wills and Estates
Bell is a solicitor in our Succession & Litigation team and has taken to specialising in estate litigation. Bell graduated from Bond University with a double degree in…
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