In the current times, talking of prenuptial agreements is controversial. This is especially with several prenups that the courts have thrown out. So the question is, is it worth making the agreement?
Since this is a complicated topic, the article has outlined what you need to know about prenuptial agreements before deciding if it will be the right option for you or not.
Are prenuptial agreements legally enforceable?
Prenuptial agreements or financial agreements are legally enforceable. However, it is only legally enforceable and binding if it complies with the provision terms. This means that the involved parties in a financial agreement should solicit independent statutory advice before signing the agreement.
While the court can legally enforce the prenuptial agreement, there are incidences when the court sets aside the agreement.
Common reasons why the court will set aside a prenuptial agreement
a.Children
Children are the most common reason behind the setting aside of prenups. When a couple starts to get children and the prenuptial does not provide for them, the court will undoubtedly set it aside.
b.Non-disclosure of your fiscal resources or assets
Disclosing personal assets is a fundamental jurisdiction in a prenup. The involved parties should both disclose their financial situations, including all financial resources and assets. If one party does not reveal everything to the other, they later find out that you did not reveal everything before signing the prenup; they will have a good reason to challenge it after divorce or separation.
However, there is an exception in this rule when the involved parties acknowledge and agree that they signed the prenup without full disclosure. Before the signing of the prenup, every partner should receive independent judicial advice. And most advocates often advise against approving a prenup without full disclosure of every financial asset.
Any prenuptial signed without a full disclosure might be investigated by the court, including unscrupulous conduct if your partner later challenges it.
c. Unconscionable conduct and duress
When you find that your assets are more than your partner’s, you are likely to feel insecure and want to protect them. It is also expected that your partner might wish to some part of it during a separation or divorce. A partner might be unwilling to sign a prenup that will have little or no provision for them.
When this happens, you shouldn’t force your partner to sign if they aren’t willing or even threaten to cancel the wedding. If you do so, the court will set aside the prenup due to duress. For instance, if a husband pressured the wife to sign it after a threat of canceling the wedding.
d. A non-equitable and unjust agreement
While couples can decide on how to divide their resources in the way they want in case of a divorce or separation, there are limits that they should not exceed. Before setting aside the prenup, the court will consider if the agreement’s contents are equitable and fair.
If the circumstances of the parties change, the court will set aside the prenup. Some cases include a partner’s health status, length of the marriage, employment status, and the birth of children out of the relationship.
However, it is impossible to predict all the when signing a prenup. This has made it less considered by many couples.
Is the prenup still worthy?
Whether a prenup is worthy or not depends on the people who want to take it. While a prenup is a great way to protect assets, excluding a partner might not work. It will protect investments in some instances, for instance.
- You can decide to sign a prenup for only pre-marriage assets accumulated by one spouse. You can exclude your partner from claiming them.
- Those who expect a considerable inheritance can sign a prenup that excludes the other party from claiming it.
- If there are assets that you want to protect, you can make a prenup for the specific assets or properties.
- Moreover, you can make a prenup but keep reviewing after some time or when your partner’s circumstances change, like the birth of a child. During a marriage, you can make financial agreements that can be updated and replaced at any time. This will ensure that you will have a binding agreement that reflects current circumstances.
Conclusion
Before going ahead with the prenuptial agreements, both participants must discuss the agreement’s contents and agree on them. Both parties should be comfortable while signing it. When you and your partner are happy and satisfied with what each should get, then the court might find it hard to challenge the prenup. For more information on prenuptial agreements in Australia, visit this family law website.
Keep in mind that court action is costly and can cost you a fortune; therefore, it is essential to make an adequate provision for your companion instead of challenging them in court. Make an informed decision.