Financial Agreements

The relationship pre-nup

Formal relationship agreements are on the rise in the United States, but will Australian couples follow the trend and draw up contracts based on lifestyle, not just finances?

Apparently Facebook founder Mark Zuckerberg was locked into a relationship agreement with his partner (now wife) Priscilla, where he was obligated to go on one date night and spend at least 100 minutes away from his home or office every week.

In the US, there has been a 39 percent increase in cohabitation agreements for live-in couples in the last five years.

But Accredited Family Law Specialist and Tindall Gask Bentley Partner Jane Miller said Australian laws do not yet make lifestyle allowances.

“Under current laws it is not possible for people to legally contract about their relationship intentions,” Ms Miller said. 

“The Family Law Act allows couples to enter pre-nuptial agreements about the division of assets and financial resources in the event their relationship breaks down, as well as the payment of ongoing maintenance between the separating parties.  

“In these agreements a couple may note their wishes for the lifestyle aspects of their union, however this is not advisable as such terms would not be legally binding or enforceable.”

Ms Miller said couples may be looking for innovative ways to help their marriages as lifestyles become increasingly demanding and divorce rates rise.

But she doesn’t believe Australian laws need to be altered to suit relationship needs. 

“With the introduction of the Family Law Act in 1975 Australia embraced ‘no fault divorce’, meaning that the conduct of either party during the relationship was not relevant to whether a divorce should be granted,” Ms Miller said. 

“The only ground for divorce in Australia is the irretrievable breakdown of the marriage, evidenced by 12 months of separation. 

“As the conduct of parties to a marriage has not been relevant in divorce proceedings since 1975, it is difficult to imagine that lifestyle pre-nuptials will be a regular feature of Australian family law in the future.” 

Ms Miller said it is best for couples to sort out their lifestyle differences the “old fashioned way” – by talking about it. 

“If a lifestyle agreement were breached it would not be possible to enforce the agreement or seek restitution, so it is fruitless to look for a legal framework to define these relationship goals,” she said. 

“It’s recommended for couples to clearly communicate their hopes and desires for married life prior to tying the knot, and this can be done without attempting to contractually bind one another to those hopes.”

Do you think we need relationship contracts?

Author: Andrew Montesi