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Pre-Nuptials - Can you break an agreement? |
For the past four years pre-nuptial agreements have been legally enforceable in Australia. Their usual aim is to protect pre-marital property. However, the longer a couple live together, the more likely a 'pre-nup' may come to seem unfair as partners mingle their finances, depart from envisaged arrangements or have a child. Some ways to escape an agreement are by establishing that it is not binding, by claiming against any property not dealt with in the agreement, or by querying its enforceability. |
There are certain basic requirements a pre-nup must meet, including that it be in writing and signed by both parties. The parties must also have received independent advice on the advantages and disadvantages for them of making the agreement. |
The agreement must deal with the property, financial resources and spousal maintenance of the parties. |
However, it may not deal with all of the property of the parties. Property which may not be covered in the agreement includes that acquired after the date of the agreement or after the date of the marriage, inherited or gifted, owned prior to marriage but which has increased in value (to the extent of the increase), purchased as joint tenants, gifted by one party to the other, and windfalls such as lottery wins and damages awards. |
Assuming the basic requirements of an agreement have been met, it may be set aside if, for example, it contained fraudulent statements, if later unforeseen circumstances make it impractical for it, or part of it, to be carried out, or if there is a material change in circumstances of a child of the marriage so that the child or an adult with caring responsibilities for the child will suffer hardship. |
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