Should I get a pre-nup? Maybe…

In Western Australia if you have been in a committed relationship for two years or more there is a possibility (but no more) that your partner may take you to the Family Court of Western Australia and ask that Court to make an order about property that you or they or both of you own.

If you live together the chances are much higher.

Is that a bad thing?

It may be that a prenuptial agreement (correct name: Binding Financial Agreement “BFA”) is not going to get you a result that is any better or worse than the treatment that you would receive from the Family Court of Western Australia.

The true purpose of a BFA is to exclude the Court from deciding how to divide up your assets.  It also excludes the Court from making orders about spousal maintenance. It thus opens the door to “unfair” deals the Court would reject – more on that later.

Once you have a BFA then the only way the Family Court of Western Australia can make an order is if the BFA is set aside by the Court.

When should I get one?

• If you have, or had, property that your partner had nothing to do with – for example the money, property from your previous relationship breakdown, inheritances, gifts, winnings etc;

• If you want to keep your earnings and property separate from your partner’s, now and forever;

• If you want to make sure that children from a previous relationship get your assets and avoid all the fights that come from their concern that they may not, and;

• If you want to prevent any future claim for maintenance by your partner (not your children though).

What does it do?

A BFA creates a written agreement between you and your partner about what is to happen if your relationship breaks down.

It can cover not only your property now but property you get in the future, however it is received.

Is it better than a court order?

No.

The Court can hear an application to set aside the BFA and can (and does) decide to do so for a variety of reasons including:

• Some technical fault with the BFA or its execution.

• Not real consent because there was:

• Duress.
  • Unconscionable conduct.
  • Undue influence.
  • Fraud.
  • Uneven bargaining power.

Essentially, the particular facts mean that the agreement to sign the BFA was not genuine or was not freely given.

There is presently more uncertainty about BFA’s than ever before due to a recent Court decision which said that an agreement was signed under duress because of “inequality of bargaining power where there was no outcome to her that was fair and reasonable”.

One of the main reasons for entering into a BFA is to obtain a result that would be better (for the wealthier party) than would be the likely result in the Family Court.

But now the Court is going to look at how the bargaining power of the parties stack up. There is now concern and doubt as to the validity of BFA’s which is yet to be resolved.

Another fly in the ointment…

There has always been a requirement of a BFA that the parties have had “independent legal advice” as to whether or not the agreement is in their interest and how it affects their rights.

Without that independent legal advice the agreement is automatically invalid.

If the purpose of the pre-nup was to reach an agreement that heavily favoured the wealthier party the advice that most people will be given is that they should not sign the agreement and although they are free to do so against that advice many, of course, wont.

Lawyers are wary of prenups because of the possibility of being accused, down the track, of not providing proper advice.  Most lawyers will not encourage somebody to sign a prenup which is unfair and this makes it harder to get them executed.

It is a fine idea to have an agreement that allows you to protect the assets you bring to a relationship and the legislation is designed to put in place a procedure for that to happen.

However, the system is far from perfect and right now it may not be the right answer for you.

The bottom line is this: For many people a BFA is a very attractive alternative to taking a chance before the Family Court.

But you first need to get sound legal advice about whether a prenup is right for you.

Tindall Gask Bentley’s family law team are experienced in BFAs and all other areas of Family Law. Make an enquiry today by registering your details here, or call our West Perth office on (08)9211 5800 and our team will get back to you straight away.