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Prenuptial Agreement

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Australian Capital Territory

Australian Capital TerritoryBuilt for the Australian Capital Territory
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Frequently Asked Questions
What is a Prenuptial Agreement?A Prenuptial Agreement, also known as a financial agreement, sorts out current and future financial and property issues before marriage. In general, it sets out who the parties are, describes their current property and debt, and explains how all current and prospective property will be dealt with in the event of a breakup.

This Agreement also deals with issues such as spousal support, inheritance, and dependent children.Can I create a prenup if I'm already married?Prenuptial Agreements are contracts that are executed before marriage to specify how to divide current and future property in the event of a breakup. You cannot create a Prenuptial Agreement after you are married, but you can create a Postnuptial Agreement. A Postnuptial Agreement is similar to a prenup but may offer less asset protection because once you are married, many of your assets could already be considered marital property.What if the parties do not live in the same state or territory?If the parties currently reside in different states or territories, then usually you should choose the state or territory where both parties will live after marriage (e.g. If one party resides in Victoria and the other party resides in Queensland and both will live in Victoria after marriage, then select Victoria).

However, if neither party currently resides in the state or territory you will live in after marriage, then you can select the state or territory where either party currently resides (e.g. If one party resides in New South Wales and the other party resides in Queensland and both will live in Victoria after marriage, then select either New South Wales or Queensland).


Your Prenuptial Agreement

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FINANCIAL AGREEMENT

THIS FINANCIAL AGREEMENT (the "Agreement") MADE ON ____ ________________ ________.

BETWEEN:

______________________
of __________

- AND -

______________________
of __________

  1. RECITALS
  2. This Agreement is made between ______________________ and ______________________ (collectively the "Parties" and individually a "Party") who are contemplating marriage each to the other.
  3. This agreement is made before marriage under Section 90B of the Family Law Act 1975.
  4. The Parties intend for this Agreement to become effective upon their marriage pursuant to the laws of the Commonwealth of Australia, including the Family Law Act 1975 , or other applicable laws, adopted by the Commonwealth of Australia.
  5. The Parties wish to enter into this Agreement to provide for the status, ownership, and division of property between them, including future property owned or to be acquired by either or both of them.
  6. The Parties further wish to affix their respective rights and liabilities that may result from this relationship.
  7. The Parties recognise the possibility of unhappy differences that may arise between them. Accordingly, the Parties desire that the distribution of any property that either or both of them may own will be governed by the terms of this Agreement and, insofar as the statutory or case law permits, intend that any statutes that may apply to them, either by virtue of Commonwealth or Territorial legislation, will not apply to them.
  8. The Parties acknowledge that they have been provided with a reasonable period of time to review this Agreement.
  9. The Parties also acknowledge that they each have retained their own lawyer and received independent legal advice regarding the terms of this Agreement.
  10. The Parties have disclosed to their satisfaction all assets and liabilities that each may have and voluntarily and expressly waive any other rights to disclosure of the property or financial obligations of each other beyond the disclosure provided.
  11. Each Party agrees and affirms THAT:
    1. The Parties did execute the Agreement voluntarily;
    2. This Agreement was not unconscionable when it was executed;
    3. Prior to execution of the Agreement, both Parties were provided a fair and reasonable disclosure of the property or financial obligations of the other Party;
    4. Each Party has, or reasonably could have had, an adequate knowledge of the property or financial obligations of the other Party; and
    5. Each Party entered into this Agreement freely and under no duress or undue influence on their decision by the other Party.
  12. The Parties acknowledge that this Agreement will continue upon termination of marriage whether by death, divorce, or otherwise.

NOW THEREFORE in consideration of the upcoming marriage, and in consideration of the mutual promises and covenants contained in this Agreement, the Parties agree as follows:

  1. PROPERTY
  2. The Parties acknowledge that this Agreement will govern any determination of ownership of property that may occur in the event of the Parties separating, or upon the death of a Party.
  3. All jointly acquired or jointly held property, however and whenever acquired, will remain the property of and be owned by both Parties and will be treated as shared property (the "Shared Property").
  4. Except as otherwise provided in this Agreement, all property will be treated as property owned solely by either one of the Parties (the "Separate Property") except where:
    1. it is Shared Property; or
    2. there is proof of shared legal ownership.
  5. Nothing in this Agreement will prevent or invalidate any gift, or transfer for value, from one Party to the other of present or future property.
  6. Unless a Party can reasonably show that they solely own a piece of property, where either Party commingles jointly owned property with Separate Property, any commingled property will be presumed to be Shared Property.
  7. DEBTS
  8. The Parties acknowledge that this Agreement will govern any determination of responsibility of debts that may occur in the event of the Parties separating, or upon the death of a Party.
  9. All jointly acquired or jointly held debts, however and whenever acquired, will remain the debts of and be owed by both Parties and will be treated as shared debts (the "Shared Debts").
  10. Except as otherwise provided in this Agreement, all debts will be treated as debts owed solely by either one of the Parties (the "Separate Debts") except where:
    1. it is Shared Debt; or
    2. there is proof of shared legal responsibility.
  11. SUPPORT
  12. In the event of a separation the Parties agree that spousal support may be payable to one of the Parties on the basis of the Party's financial circumstances at the time of separation or otherwise. It is understood and accepted by each Party that spousal support will be determined according to the appropriate Commonwealth or State laws.
  13. ESTATES AND TESTAMENTARY DISPOSITION
  14. Nothing in this Agreement will limit or affect any rights that each may acquire as spouse or surviving spouse in the property, assets or estate of the other spouse.
  15. Nothing in this Agreement will invalidate or prevent either Party from naming the other as a beneficiary by will or other testamentary disposition.
  16. SEVERABILITY
  17. Should any portion of this Agreement be held by a court of law to be invalid, unenforceable, or void, such holding will not have the effect of invalidating or voiding the remainder of this Agreement, and the Parties agree that the portion so held to be invalid, unenforceable, or void, will be deemed amended, reduced in scope, or otherwise stricken only to the extent required for purposes of validity and enforcement in the jurisdiction of such holding.
  18. INTENTION OF THE PARTIES
  19. Notwithstanding that the Parties acknowledge and agree that their circumstances at the execution of this Agreement may change for many reasons, including but without limiting the generality of the foregoing, the passage of years, it is nonetheless their intention to be bound strictly by the terms of this Agreement at all times.
  20. DUTY OF GOOD FAITH
  21. This Agreement creates a fiduciary relationship between the Parties in which each Party agrees to act with the utmost of good faith and fair dealing toward the other in all aspects of this Agreement.
  22. FURTHER DOCUMENTATION
  23. The Parties agree to provide and execute such further documentation as may be reasonably required to give full force and effect to each term of this Agreement.
  24. TITLE/HEADINGS
  25. The headings of this Agreement form no part of it, and will be deemed to have been inserted for convenience only.
  26. ENUREMENT
  27. This Agreement will be binding upon and will enure to the benefit of the Parties, their respective heirs, executors, administrators, and assigns.
  28. GOVERNING LAW
  29. The laws of the Commonwealth of Australia will govern the interpretation of this Agreement, and the status, ownership, and division of property between the Parties wherever either or both of them may from time to time reside.
  30. TERMINATION OR AMENDMENT
  31. This Agreement may only be terminated or amended by the Parties in writing signed by both of them.
  32. ENTIRE AGREEMENT
  33. The Agreement constitutes the entire agreement and understanding between the Parties to this Agreement and supersedes all prior communications, contracts, or agreements between these Parties with respect to the subject matter addressed in this Agreement, whether oral or written.

IN WITNESS WHEREOF the Parties have hereunto set their hands and seals on ____ ________________ ________.

SIGNED, SEALED AND DELIVERED
In the presence of:

_____________________________
Witness
Printed Name: _________________

_____________________________
Witness
Printed Name: _________________

________________________
______________________



_____________________________
Witness
Printed Name: _________________

_____________________________
Witness
Printed Name: _________________

________________________
______________________


CERTIFICATE OF INDEPENDENT LEGAL ADVICE

THE AUSTRALIAN CAPITAL TERRITORY

I, ________________________, of the City of ___________________, in the Australian Capital Territory, Solicitor, DO HEREBY CERTIFY:

THAT I was this day consulted in my professional capacity by ______________________, named in the within instrument, being a Financial Agreement, separate and apart from ______________________, as to his legal rights and liabilities under the terms and conditions of the said Financial Agreement, and that I acted solely for him. I explained fully to him the nature and effect of the said Financial Agreement on his rights and the advantages and disadvantages to him of entering the said Financial Agreement. He did execute the said Financial Agreement in my presence, and did acknowledge and declare that he was executing it of his own volition and without any fear, threats, compulsion or influence from ______________________, or any other person.

DATED at the City of ___________________, in the Australian Capital Territory this ____________ day of _________, 20___.

________________________
SOLICITOR
Print Name: _____________



I, ______________________, the person named in the annexed Financial Agreement, hereby acknowledge the foregoing this ____day of ______________20___.


________________________
______________________


CERTIFICATE OF INDEPENDENT LEGAL ADVICE

THE AUSTRALIAN CAPITAL TERRITORY

I, ________________________, of the City of ___________________, in the Australian Capital Territory, Solicitor, DO HEREBY CERTIFY:

THAT I was this day consulted in my professional capacity by ______________________, named in the within instrument, being a Financial Agreement, separate and apart from ______________________, as to her legal rights and liabilities under the terms and conditions of the said Financial Agreement, and that I acted solely for her. I explained fully to her the nature and effect of the said Financial Agreement on her rights and the advantages and disadvantages to her of entering the said Financial Agreement. She did execute the said Financial Agreement in my presence, and did acknowledge and declare that she was executing it of her own volition and without any fear, threats, compulsion or influence from ______________________, or any other person.

DATED at the City of ___________________, in the Australian Capital Territory this ____________ day of _________, 20___.

________________________
SOLICITOR
Print Name: _________________



I, ______________________, the person named in the annexed Financial Agreement, hereby acknowledge the foregoing this ____day of ______________20___.


________________________
______________________

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Last Updated February 27, 2024

Prenputial Agreement Information

Alternate Names:

A Prenuptial Agreement is also known as a:

  • Prenup agreement
  • Binding financial agreement
  • Marriage agreement
  • Marriage prenup
  • Antenuptial agreement

What is a prenup?

A Prenuptial Agreement, also known as a prenup, is a written contract that spouses create before they are legally married. Prenups should outline each partner’s finances, substantial belongings, and debt, and clarify which property is shared or separate. If completed properly, prenups should specify how spouses want their shared property and finances divided if they end their marriage.

If you have children from a previous relationship, a prenup can help ensure that your children receive their proper inheritance if you pass away.

Couples who are not getting married but intend to move in together can create a Cohabitation Agreement to specify their current and future financial and property rights.

What is shared property?

Shared property is property or assets that spouses own together, such as money or possessions that they acquire during the relationship. If a couple divorces, their shared property is subject to equitable distribution. If spouses do not have a prenup, a court’s final ruling divides their shared property.

Separate property is property that only one partner owns. In the event of a divorce, separate property remains with the individual spouse. Generally, a person must acquire an asset before marriage for it to qualify as separate property. This type of property can be purchased, gifted, or inherited.

Why should we create a Prenuptial Agreement?

Prenups can protect both spouses in the event of a divorce, speeding up the process and simplifying the division of assets. Furthermore, they can help eliminate future conflict if spouses decide to end their relationship.

Prenups can be more beneficial for certain groups of people. Business owners, heirs of a family business, or individuals who own a professional practice may use a prenup to protect their livelihood. Individuals who are wealthier than their spouse or expect to receive a large inheritance may also see the value in Prenuptial Agreements. Also, any person with minor children from a previous relationship should consider creating a prenup to protect their children’s property rights.

Are Prenuptial Agreements binding in Australia?

Yes, if executed properly, courts can recognize Prenuptial Agreements and enforce them during a divorce. For a prenup to be binding in Australia, both parties must receive independent legal advice and each must attach a certificate of independent advice to the prenup (and provide the other party with a copy of the certificate).

What makes Prenuptial Agreements legally binding?

All contracts, including Prenuptial Agreements, must meet certain criteria before courts can enforce them. For a court to consider enforcing a prenup, certain requirements must be met:

  • The contract must be properly dated
  • The contact must be signed by the parties
  • The contract must be properly signed by the witness or witnesses
  • The terms of the contract must be legal
  • The parties must disclose all assets and liabilities
  • The parties must have signed the document without any undue influence
  • The parties must both receive independent legal advice
  • The parties must each attach a certificate of independent advice to the agreement

How can I ensure my prenup is legally recognized?

Before signing and agreeing to the terms of a prenup, you must secure a certificate of independent legal advice from a practicing lawyer. You and your spouse must obtain certificates from different lawyers.

Lawyers can clarify prenup terms and explain the impact of signing a Prenuptial Agreement. With a certificate of independent legal advice, you can reassure courts that neither party was forced to agree to terms that they do not completely understand.

A certificate of independent legal advice does not guarantee that courts will recognize your prenup. However, it is more likely your prenup will be recognized with a certificate of independent legal advice. Without one, your prenup will not be recognized.

Can I make a prenup without a lawyer?

Yes, you can easily create a prenup without a lawyer by completing LawDepot’s questionnaire. LawDepot asks for details about you and your spouse, as well as your assets, debts, and children. Also, you can include information about your preferences for spousal maintenance or support.

However, once your document is complete you must involve lawyers. Separately from your spouse, you must take a copy of your Prenuptial Agreement to a lawyer, have them review it with you, and obtain a certificate of independent legal advice. Your spouse must take a copy to a different lawyer and obtain a separate certificate. Once you've both received such a certificate, you can sign the prenup with your partner, in front of a lawyer or other witness.

What should I include in a Prenuptial Agreement?

Primarily, prenups dictate the division of spousal finances. Spousal finances include more than just a couple’s joint bank account; they include everything with monetary value that contributes to your overall worth as a couple.

LawDepot’s Prenuptial Agreement template will cover division of income, properties, businesses, investments, inheritances, and joint debts. Prenups also specify details about spousal maintenance (also called spousal support).

How does a prenup affect a marriage?

It’s no secret that Prenuptial Agreements can be a taboo subject to discuss between partners. Furthermore, they are often misunderstood as destructive documents that can create hostility between spouses. However, if you maintain a level head while creating a prenup and keep both spouses’ interests in mind, Prenuptial Agreements can provide immense protection and peace of mind.

In reality, prenups can ensure that spouses do not make irrational and unfair decisions if they find themselves pursuing a divorce. Ending a marriage can involve plenty of resentment and hurt feelings. Prenups dictate the division of assets, so both parties are not making decisions while they are experiencing conflict. Anger-fueled decisions can result in additional conflict and further divide a family.

When do I make a Prenuptial Agreement?

It is advisable to create and sign a prenup at least a month before your wedding. If you are not having a wedding ceremony, create one before you sign the paperwork to legalize your union. By creating a Prenuptial Agreement, each spouse knows the financial expectations and desires of the other before becoming legally bound.

Can I make a prenup if I’m already married?

No, prenups must be created before you are married. If you are already married, you must use a postnuptial agreement. Like prenups, spouses use postnuptial agreements to specify their separate and shared property and outline the division of their assets, in the event of a breakup or death.

Should I sign a Prenuptial Agreement?

Ultimately, no one can tell you whether you should or should not sign a Prenuptial Agreement. Everyone’s circumstances are completely different. For instance, some individuals may deal with family expectations to protect a family estate with a prenup. For other couples, signing a prenup before their wedding day might be too emotionally demanding. Whatever your circumstances are, you must advocate for your best interests.

If you are unsure about signing a prenup, consult with a legal professional to look over you and your partner’s prenup—before you sign. Discussing your situation with an unbiased lawyer can help protect your interests.

Related Documents:

  • Cohabitation Agreement: Protect your assets and create financial terms similar to a prenup when you're in a long-term relationship as opposed to a marriage.
  • Last Will and Testament: Appoint an executor and control how your assets are distributed after you pass away.
  • Separation Agreement: Make decisions about the division of marital property and debts, as well as child custody and visitation.
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