A prenuptial agreement is a financial agreement that is in writing and executed before the marriage or de facto relationship.
We don’t enter into a marriage or a de facto relationship and plan for it to fail. We can’t even bear thinking about separating from our loved one much less prepare for it. So that if ever the relationship ends up in divorce or separation the couple is unprepared for the consequences. Apart from coping with the emotional rollercoaster of the separation parties have to deal with financial and property issues.
A prenuptial agreement is a practical and effective way of planning for the couple’s future. The agreement will serve as the financial plan of the parties during their marriage or de facto relationship. A prenup is particularly useful to couples who have disparity in their assets when they come into the relationship. Through the agreement assets and interests will be protected since it may contain stipulations about property ownership and division.
The prenuptial agreement may be designed by the parties to be effective during and after the relationship.
Spouse maintenance during and after marriage or de facto relationship may also be agreed upon in a prenup. A spouse or partner is then assured of financial support without asking for it.
The great thing about a prenup is that it dispenses with doubt, uncertainty and suspicions. The parties know what they are getting into and what they will be receiving. Everything is in black and white for easy reference. The spouses and partners can then get on with their lives and build happy homes.
A prenup must be in writing and signed by both of the parties. It must contain a statement that the spouses or partners had independent advice from a lawyer about the agreement and how this will affect their rights and responsibilities. The lawyer must also discuss to his client the advantages and disadvantages of entering into the prenup. The advice from the lawyer must be given prior to entering into the agreement. A certificate from the lawyer that he gave advice must be attached to the prenup.
Yes. No agreement is absolute in family law, even a prenup. There have been many precedents that a prenup has been set aside because of flaws in its execution. An agreement must not be used to defraud a creditor or defeat third party claims against assets. A defrauded creditor may apply to the court to have the prenup set aside.
Significant changes to the circumstances of parties are also valid grounds for setting aside the agreement. In his application, the party must allege that the continuance of the prenup agreement will cause hardship and damage to the parties or to a child.