Pre-Nuptial & Cohabitation Agreements

At law, pre-nuptial agreements are referred to as Binding Financial Agreements. Under Section 90B of the Family Law Act 1975 you may make a Binding Financial Agreement in contemplation of marriage which details how property and financial resources will be dealt with in the event of a breakdown of the marriage and which details the spousal maintenance (if any) to be paid to either of you in the event of the breakdown of the marriage. Binding Financial Agreements may also be made during and after marriage under sections 90C and 90D of the Family Law Act.

A cohabitation agreement is an agreement made by de facto spouses under Part 19 of the Property Law Act 1974 (Qld) in contemplation of starting their relationship, during their relationship or after separation dealing with all or some of their financial matters. If the parties separate and the Court is satisfied that there is a recognised agreement between them then the Court must not make a property adjustment order inconsistent with the provisions of the agreement on financial matters.

These agreements can be made before you marry or commence cohabitation, during the time you live together, or at the end of a relationship. Such agreements usually deal with the way property should be divided in the event that a relationship ends and, in the case of couples who marry, with spousal maintenance. There are strict rules about these arrangements under the Family Law Act and Part 19 of the Property Law Act (Qld) and both parties should obtain independent legal advice.

We suggest that you start by considering the following:-

1.    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.

2.   What are you trying to acheive 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?

3.    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 acheive 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. Don't despair if you can't reach agreement. It's hard work. You may need to persevere.

4.    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 and contain a complete statement of your assets, liabilities, financial resources, income and expenditure. An agreement can be set aside if it is based on incorrect information which misleads the other party.

It is preferable (and required in the case of marriage) that each party receive independent legal advice.

Try your best on the information you have available to you to make an agreement that is fair and reasonable.

If these conditions are met you will have a legally binding agreement.

5.    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 it putting the agreement into effect will give rise to a substantial injustice (for de facto couples) or that a child or party with a caring capacity for a child will suffer hardship if the agreement is not set aside (in the case of married couples).

6.   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 $220) 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 $2,000. In some cases your costs may be significantly higher. Your costs will reflect the work done to acheive an agreement.

This website provides information only and is not a substitute for legal advice.