Asked to sign a prenup? Preparing for independent legal advice

What does “prenup” mean?

People commonly use “prenup” for an agreement made before marriage about financial arrangements if the relationship ends. Australian family law also provides for financial agreements at other stages of a marriage or de facto relationship. The form of agreement needs to suit the relationship and the timing.

Do not assume a document is suitable simply because its heading says “binding financial agreement”. Start by explaining your situation and what the document is intended to achieve.

Provide the complete draft and supporting information

Send your lawyer the full proposed agreement, including its schedules and any changes already discussed. Explain whether there is a proposed wedding, signing or other important date. If another solicitor prepared it, provide their details and relevant correspondence.

A clear picture of the financial circumstances helps make the advice meaningful. Your lawyer can tell you which records are needed and identify information that remains to be checked.

• The complete draft and any earlier version showing negotiated changes.
• A summary of assets, debts, income and superannuation, with the supporting records available to you.
• Details of any business, trust or farming interests relevant to the proposal.
• Your questions, expectations and any terms you do not understand.

Understand what the advice needs to cover

For a financial agreement to be binding, legal requirements must be met. These include each party obtaining independent legal advice before signing about the agreement’s effect on their rights and the advantages and disadvantages, at that time, of making the agreement.

Your lawyer should explain what the proposed terms mean for you and discuss concerns or changes to raise. A signature or advice certificate does not make every agreement immune from challenge. There are circumstances in which a court can set a financial agreement aside.

Ask about the practical consequences

Allow time to consider the advice and any proposed changes. Tell your lawyer about pressure to sign or an approaching date at the outset, so they can discuss what can realistically be done.

Daniel Brownlie at Magpie Family Law in Ballarat can prepare financial agreements and advise on an agreement prepared by another solicitor. Let us know which type of assistance you need when you enquire.

• Which property, debts and other financial issues does the agreement deal with?
• What would I receive, retain, pay or give up if the relevant terms take effect?
• How does the document address the changes in circumstances we are concerned about?
• What information or amendments should we resolve before I decide whether to sign?