Prenuptial Lawyers Perth
Protect your assets in the event of a separation by getting a binding financial agreement.
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What is a Prenup (Binding Financial Agreement)?
A prenuptial agreement (prenup) is a type of binding financial agreement (BFA) that outlines how your assets and debts will be divided if you ever separate from your partner.
A BFA is a written agreement between you and your partner (or future partner if you haven’t started your relationship yet).
You can enter into a prenup (eg a BFA) either before you start your relationship or during your relationship.
Both married couples and those in a de-facto relationship can enter into a BFA.
In order for your BFA to be legally binding, both parties need to obtain independent legal advice, which is usually confirmed in a letter. This letter sets out the advantages and disadvantages of entering into the BFA, and its effects on your legal rights. Each party’s lawyer also needs to sign a certificate of independent legal advice, which must be attached to the back of the BFA.
Types Of BFAs
There are 2 types of binding financial agreements: either before separation or after separation.
Before You Separate
You and your partner sign a BFA to determine how you split your assets and debts before you separate.
This means the BFA is signed either before you start your relationship (e.g. before marriage or before you move in together) or while you are in a relationship (e.g. after marriage or after you’ve become a de facto couple).
The BFA in this circumstance is used as an asset-protection mechanism.
You can protect your partner from having access to your house, inheritance, business interest, investments and any other assets you bring into the relationship.
After You Separate
If you and your partner have separated, you can enter into a BFA to decide how your assets and debts will be split between you both.
This is an alternative to consent orders.
You list all the assets you currently have and who will be getting what.
A BFA in this circumstance is used to legally divide the assets of the relationship and finalise all financial matters for good - so you can both move on with life.
The Process
- 1
You Agree On What Happens When You Separate
You and your partner should discuss what happens to your assets and debts if you ever separate. You should at least reach an agreement on the main points, and we can help you flesh out the finer details.
- 2
We Prepare The BFA
Next, your agreement gets drafted by our expert family lawyers. This draft BFA outlines your agreement, with specifics to cover everything.
- 3
Your Partner Reviews It
Once drafted, your partner gets their own independent legal advice on the document. It’s compulsory for you both to get your own independent legal advice.
- 4
BFA Signed
The BFA is then signed by both parties, and their lawyers.
- 5
BFA Is Binding
Finally, the BFA comes into effect. If you separate in the future, that’s when you divide your assets in the manner set out in the agreement. A BFA is also binding in the event of the death of one party (eg the assets and debts are divided with the deceased estate).
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Common Situations For Getting A Prenup
A prenup can be used in many situations. Some of the key ones are
- You are entering a relationship with significantly more assets than your partner.
- You have children from a previous relationship and want to ensure the assets you acquired before are shared with those children.
- You are forming a partnership later in life and wish to safeguard what you’ve accumulated over your lifetime.
- Your parents are offering financial help, like money for a house, and they want to secure that contribution should the relationship end.
- You are expecting to receive an inheritance and would like it protected in the event of a separation.
Benefits Of A Prenup
The main benefits of entering into a prenuptial agreement are:
It protects your assets, that is you can keep your assets during a separation.
It makes this less messy and less costly during a separation - no costly court litigation needed because everything will be divided according to the BFA.
It gives you certainty and piece of mind if you ever break up.
Are There Any Circumstances In Which A Financial Agreement Might Be Deemed Invalid?
There are limited situations in which this might happen. This may include things like:
- 1
Fraud
The agreement was made fraudulently, for example if there was material non-disclosure of assets.
- 2
Duress
This means being forced into doing something. This does not mean that the other party literally has to force your pen to paper, but rather that there are circumstances in which a party has felt bullied or pressured into signing.
- 3
Unconscionability
The agreement was made unconscionably. This means that one party used their position of power to make the other sign the binding financial agreement, to the extent that it may not be deemed to have been made under their own free will.
- 4
Hardship Due To Care For Children
There is also the potential for the BFA to be set aside as a result of a material change of circumstances in relation to the care, welfare and development of a child of the relationship who is under 18, and hardship would be caused. To show hardship, a person needs to show that the expenses in relation to the child have increased compared to the period when the BFA was signed. Further, any decision in relation to setting aside the BFA is discretionary, meaning even if a material change of circumstances and hardship are proved, the Court may still not exercise their power to set aside the BFA. This only applies while the child is under 18 years.
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Case Studies
Names have been changed to protect clients' identity.
Sally and Jordan
We helped Sally create a BFA to protect her inheritance of $140,000
Sally and her partner Jordan are both in their early to mid-20s and are currently pursuing higher education. Sally was due to receive a significant inheritance, approximately $140,000, from her grandparents and parents abroad. As a young couple, neither Sally nor her partner had significant assets, making this inheritance a major increase to their financial resources.
Sally's family had concerns regarding her de facto relationship, especially since it was still in the early stages and they were worried about how it might affect the impending inheritance (eg if they separated). After discussions with her family, Sally decided that a prenuptial agreement with her partner Jordan would be the most prudent measure to protect her interests and ensure the inheritance could be used for the benefit of their relationship.
Sally then raised this matter with Jordan, who was receptive to the idea of entering into a binding financial agreement. They both agreed that, in the event of a separation, they would each retain their personal assets. This meant Sally could use her inheritance to buy a house in her own name, with the confidence that her investment would be safeguarded should the relationship not last.
Sally planned to purchase a house with her $140,000 inheritance, listing only herself on the title and mortgage. Jordan would live in the property, but Sally would manage most of the financial responsibilities, including the mortgage repayments and utilities, with Jordan contributing as and when possible. Should they decide to go their separate ways, Sally would keep the house and the mortgage, thereby protecting her inheritance.
Alternatively, they could have decided to buy a house jointly with Sally's inheritance. In this arrangement, any division of the property upon separation would be proportional to each party's financial contribution to the home. For example, if they separated, Sally could reclaim her $140,000 plus a potential share of the equity if Jordan were to refinance the house. If they sold the property, Sally could receive the first $140,000 from the sale proceeds, with the rest being divided equally between them. If Sally retained the property, she might compensate Jordan for the equity portion exceeding her initial investment of $140,000. Either way, Sally would retain her inheritance and Jordan would not have access to it. protect their wealth they entered into a Binding Financial Agreement which states if they were to separate or one of them passes away, David would retain his assets, and Elizabeth would keep hers, ensuring that their respective children would inherit the assets they had accumulated.
David and Elizabeth
We helped David create a BFA to ensure his children receive the assets he built up during his lifetime.
Liam and Sophie
We created a BFA for Liam for protect his assets and
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