When preparing a pre-nuptial agreement (or Binding Financial Agreement) it is important to ensure certain steps are followed, as if they are not prepared correctly they are not enforceable and your assets are then open to being distributed as the Court sees fit. There have been many recent cases where this has happened and the Court has set aside a Binding Financial Agreement (BFA).

Firstly, each party must receive their own independent legal advice from a lawyer in the Australian jurisdiction. The agreement, containing a complete disclosure of assets, liabilities, expenditure and income, must be in writing and drafted by and signed in the presence of a lawyer. It is also important that each party signed the agreement voluntarily, that is free from coercion, duress or undue influence.

An agreement may be set aside if:

  • it does not provide for circumstances relevant to future children
  • either party does not disclose the full extent and/or value of their assets at the time the agreement was drafted and signed
  • one party unreasonably pressures or coerces the other into signing the agreement, such as shortly before a wedding as a condition for the wedding to continue
  • It is not just and equitable (fair).

If you are preparing, or being asked to enter into, a pre-nuptial agreement/Binding Financial Agreement speak to Linna at Hume Taylor & Co today.