A pre-nuptial agreement, now known as a Financial Agreement, is an agreement between two people which sets out how, in the event of the breakdown of the marriage, the property or financial resources of the parties are to be dealt with. It can also set out the terms of the maintenance of either party during the marriage and/or after divorce.
It is important to sort out your financial affairs and protect your assets well and truly before the wedding day. There are specific requirements under the Family Law Act which must be followed to make the agreement binding, including the need for both parties to obtain independent legal advice.
We understand that it may be a difficult topic to discuss with your fiancé, so here are some tips on making that journey a little easier.
1. Make it a conversation
Make sure you approach the discussion as a conversation rather than as a list of demands: “Let’s talk about getting a pre-nup” or, “How do you feel about getting a pre-nup to protect both of us?” is far more constructive than: “We need to get a pre-nup”.
2. Be upfront about your reasons and concerns
Talking about a pre-nup doesn’t mean you expect the marriage to fail, but like insurance, it’s useful to have just in case it does. So take the time to acknowledge your concerns and hopes and treat the discussion as a way to strengthen your partnership. If financial independence is important to you or you are worried about being financially disadvantaged if the marriage does not last, then a pre-nup discussion is the time to raise such issues.
3. Don’t be defensive and try not to get worked up
Conversations about tricky topics always work best if both partners can be rational and calm and focus on the issue rather than letting things get personal. Listen attentively to your partner and try and let them finish what they are saying before you speak. And don’t forget to ask questions.
4. Cover all your bases
Talking about a pre-nup is a great opportunity to discuss your financial expectations and make sure you have a shared approach. Some people use the creation of their pre-nup as an opportunity to discuss what they want out of the marriage. Once your pre-nup is signed, take the time to review it on a regular basis, at least once every couple of years, and when significant events occur in the marriage such as the birth of a child, or the purchase or sale of a significant asset.
5. Create your prenuptial agreement together
If you create your pre-nup together, over time and without rushing into it, it can be something you both value and feel you have a stake in. So don’t present a pre-drafted document to your partner. Discuss it together first and try and agree on the main terms of the agreement. Use it as an opportunity to discuss your expectations of your impending marriage.
6. Do it before you start sending out wedding invites
Preparing for a wedding can be stressful and emotions can be heightened. So don’t raise the issue of your pre-nup just before the wedding. Bring it up well in advance so you are both in the best frame of mind to have a constructive discussion.
7. Take your time
You don’t have to agree on the terms of your pre-nup in one sitting. Give yourself the time to take breathers if you need to and consider seeking independent legal advice. Note that for the agreement to be binding, your lawyer will need to sign a certificate to state that they have given you independent advice on the effect of the agreement on your rights and obligations, and the advantages and disadvantages to you of entering into the agreement.
8. Call in a mediator or counsellor
Sometimes it helps to have an objective outsider who is skilled in negotiation and facilitation to help you navigate a pre-nup discussion. Remember, you can always call in a mediator or counsellor if you need one.
9. Leave room for change over time
Consider the various scenarios that may arise in your marriage. You and your partner might go into business together or one of you might stop work for a time to look after your children. Remember to create an agreement that is sensitive to different outcomes and devise terms that value both your contributions.
10. Look on the bright side
See your pre-nup as a positive sign that you and your partner are communicating well and enter your marriage with a financial agreement that is in the best interest of both parties.
→ For a confidential, free chat about pre-nuptial agreements call us at:
1 300 CORNERSTONE (267 637) for Brisbane, North Lakes and Logan Offices
(07) 5538 9119 for Gold Coast Office.
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