How to Set Up a Prenup in Australia

Read through our guide for everything you need to know and understand if you are considering prenuptial agreements or premarital agreements.

What is a Prenup in Simple Terms?

A written contract written between two people before they get married is referred to as a prenuptial agreement also referred to as a "prenup" for short. 

What is a prenuptial agreement? Depending on what state you reside in, a prenuptial agreement is known by a host of other names, some more current than others. These include:

• Antenuptial agreement
• Premarital agreement
• Prenuptial contract.

If an agreement is made during the marriage, it is then known as a:

• Postmarital
• Postnuptial
• Marital agreement.

What does a prenup do? A prenup's contents usually include a list of properties that each spouse owns, any debts, and is specific about each person's property rights once they are married.

Do You Need a Prenup?

Prenups have long been regarded as a resource for the rich, but contrary to this opinion, it's not true. How to get a prenup? While they are often used as a source for protecting assets for wealthy fiance, people of modest means are also utilizing a prenup as a source of protection, and here are some reasons why:

Property for Children from Prior Marriage - Couples that marry and have children from a previous marriage sometimes use a prenup, so it is clear what will happen with any separate property when they die. This also ensures they can still provide for each other if there is a need. There is the risk that without a prenup that the surviving spouse can take a large claim of the other spouse's property, leaving less for any surviving children.

Clarification of Financial Rights - Regardless of whether there is children, wealth, or no wealth, some couples want clarity of their financial rights and responsibilities during their marriage.

Helps During Divorce Proceedings - Prenups help during divorce proceedings, especially when it isn't amicable. In this case, it assists in avoiding arguments because there is a clear, legally binding document. It specifies how the property is divided, whether there will be allocations for alimony. 

Protection From Debts - The other purpose of a prenup is protection from each spouse's debts as well as any other financial issues that arise. 

What if You Have No Prenup?

The reality is that not everyone has a prenup agreement; however, there are laws within Australia that determine who owns a property you own acquired during your marriage, divorce, and death. Some laws may also stipulate what happens to a property you owned before you got married.

Marriage, under law, is a contract between a couple who come together as husband and wife. With that contract, there are some automatic property rights for each person in the relationship, including:

• Any property acquired during a marriage is shared ownership unless, in death or divorce, the property will be divided between spouses.

• Gaining debt during the marriage that your spouse will likely have to pay.

• Having a share in any marital and community property, the management, and control of what sometimes includes the right to give it away or to sell.

If these don't appeal to you, then a prenup is probably more to your liking, which will allow you to decide how the property will be handled.

Creating a Valid Prenup

With the increase of prenuptial agreements and them becoming more common, there is a much friendlier approach to them from the law. In the past, courts were not trusting of them and would scrutinize them suspiciously because the less wealthy spouse was on the receiving end of less legal and financial benefits, and they are thought to evoke breakups.

As divorce and remarriage are rising, and the equality between sexes, legal systems are more willing to uphold a prenuptial agreement. These premarital documents will only be adhered to by courts if it meets all the states' requirements and is judged as fair.

Regardless of how fair the documents are, the courts still take a close look at prenups. When creating a valid prenup, they must be written up clearly, understandable, and legally sound. Can you write your own prenup and have it notarized? If you decide to write your agreement, you must have separate legal representation reviews and advise you whether it is lawfully substantial. Without this guidance, the court is more likely to question its legality. How to get a prenup after marriage? Talk to a marriage lawyer in Brisbane to help you with setting up a prenup.

Do it Yourself Prenuptial Agreement?

It's not unusual that before seeking guidance from a lawyer that you draft your prenup agreement, in fact, it's quite a common way to proceed.

Can I draft my own prenup? There are many resources available to give you an understanding of how to write prenuptial agreements, Nolo's Prenuptial Agreements: How to Write a Fair & Lasting Contract, by Katherine E. Stoner and Shae Irving. This takes you through how to draft the agreement to then take to your legal representation. It takes you and your partner through worksheets to determine what you need for your prenup and clauses you need and many examples to take you through everything relatively easily.