What are the things to prepare for a prenup?

Any Financial Agreement must be prepared and reviewed by a lawyer. This will ensure that your Agreement is valid and enforceable by the Court.  A lawyer is required to sign the Agreement saying that they have given independent legal advice to their client.

Step by step instructions to prepare a prenup

    1. Firstly, you must discuss the matter with your partner. It is important to talk openly and honestly about what provisions you would like to include in the Agreement. Issues that we recommend discussing can be found under our article: ‘What can I include in a financial agreement?’
    2. If your partner is willing to enter into a Financial Agreement, you can then make an appointment with a lawyer to discuss the terms of the document. Your lawyer can only act on behalf of you. You partner is not allowed to be present during any appointments regarding the financial agreement.
    3. Your lawyer will then prepare a draft Financial Agreement that is approved by you. The draft clauses will cover all the situations and circumstances that you wish to include in the Agreement.
    4. This draft will be presented to your partner to review. Your partner will make an appointment to discuss with the Agreement with their lawyer and receive advice regarding the Agreement.
    5. Further discussion between your lawyer and your partner’s lawyer may be required before the final Binding Financial Agreement is prepared and signed.
    6. Ensure that each party has made full and adequate disclosure, otherwise, this can lead to the Agreement being set aside. Usually, appropriate clauses within the Agreement will demonstrate that this has occurred.

 

steps to prepare for a prenup

What makes a Financial Agreement Binding?

There are legal requirements that must be met for a Binding Financial Agreement (BFA) to be valid and enforceable under the law.

 

Firstly, the Agreement must be in writing. It must also refer to the relevant section under Section 90 of the Family Law Act 1975 (Cth) stating what type of Financial Agreement it is. Please refer to our article: ‘5 FAQs about Financial Prenups’ regarding the different types of Agreements that fall under the umbrella of a Binding Financial Agreement.

 

Furthermore, two separate lawyers from different law firms will need to provide each party to the relationship independent legal advice. The lawyers must give their advice referring to the Family Law Act 1975 (Cth). They are also required to issue and sign the necessary Certificate showcasing they provided the legal advice. A copy of each of the Certificates signed by each of the lawyers is provided to both Clients before the clients sign the Agreement.

 

Finally, the parties to the relationships must sign the BFA. It is unlikely, due to the necessity of the separate Independent Legal Advice for both parties that a BFA would be set aside by the Court.