Law Blog

There are many “Do it yourself legal kits” on the Internet and even some free precedents of various legal documents and agreements, so it is tempting to think that paying a relatively modest fee for one of these will be a good substitute for paying hundreds if not thousands of dollars to consult an Australian legal practitioner. In some cases, this may be true, but in the case of Prenuptial Agreements in Australia, this could not be further from the truth. Not only will the DIY legal kit likely miss very important considerations, leaving gaping holes in your Prenuptial Agreement, but it will not be binding in any event.

In Australia, Prenuptial Agreements (otherwise known as Binding Financial Agreements) are governed by the Family Law Act 1975 (Cth) – this is federal legislation, meaning that all Prenuptial Agreements in Australia must follow the same rules in order to be valid and binding on the parties.

Amongst other things, the Family Law Act 1975 (Cth), s 90G provides that:

 (1)  Subject to subsection (1A), a financial agreement is binding on the parties to the agreement if, and only if:
                     (a)  the agreement is signed by all parties; and
                     (b)  before signing the agreement, each spouse party was provided with                      independent legal advice from a legal practitioner about the effect of the                      agreement on the rights of that party and about the advantages and                      disadvantages, at the time that the advice was provided, to that party of making                      the agreement; and
                     (c)  either before or after signing the agreement, each spouse party was                      provided with a signed statement by the legal practitioner stating that the advice                      referred to in paragraph (b) was provided to that party (whether or not the                      statement is annexed to the agreement); and
                     (ca)  a copy of the statement referred to in paragraph (c) that was provided to a                      spouse party is given to the other spouse party or to a legal practitioner for the                      other spouse party; and
                     (d)  the agreement has not been terminated and has not been set aside by a                      court.

The effect of s 90G of the Family Law Act 1975 (Cth) is that each party to a Prenuptial Agreement in Australia must seek independent legal advice and they must do so before signing the Prenuptial Agreement. Failure to comply with this section of the legislation will significantly compromise the chances of your Prenuptial Agreement standing up in court if it ever was scrutinised in the future (and what’s the point of a Prenuptial Agreement at all if it isn’t even valid?).

Aside from a legislative requirement for parties to a Prenuptial Agreement to seek legal advice prior to signing, there are numerous benefits you can expect to receive if you deal with a solicitor, some of which include:

• Your solicitor will be able to identify important considerations your Prenuptial Agreement ought to cover, but which you may not have thought of
• The Prenuptial Agreement will be drafted, completed and binding sooner than if you attempted the task yourself, as your solicitor will know what they are doing from the beginning (whereas you will probably have to learn from scratch)
• If certain suggestions for provisions to be included in the Prenuptial Agreement come from a solicitor rather than your partner or yourself, the chances of misunderstandings (one party taking a suggestion the wrong way) and arguments are reduced – both parties can remain objective with more ease

An online legal precedent or DIY kit may be a good place to start to familiarise yourself with a few of the issues covered by Prenuptial Agreements, but they are only a starting point. Another starting point is contacting a lawyer (anywhere in Australia) and seeking advice from someone who really knows what they’re doing!

This website contains general information only. This site does not contain any legal advice. If you require legal advice, contact an Australian Legal Practitioner.