Don’t rush doing a pre-nuptial agreement
A “pre-nup” or pre-nuptial agreement, is the colloquial or American term for a financial agreement.
Under Australian law, financial agreements are complex and technical, and if they’re not prepared according to strict legal requirements, they can easily be set aside. Which means the court will deal with the couple’s financial matters.
The court can also deal with any property that might otherwise have been protected by a financial agreement.
A common question is, ‘how close to the wedding should I sign a financial agreement?’
There is nothing in legislation or case law that sets out an appropriate period of time for signing one before the wedding. However, couples should ensure that ample time is provided to consider the agreement.
It’s important to remember that a financial agreement can be set aside if it was obtained by fraud, or under duress.
There should be no pressure from one party threatening to not go ahead with the wedding, if the agreement is not signed.
In a recent case, a man aged 85 informed his 68-year-old fiancée just days before the wedding that he had a financial agreement he wanted her to sign.
In the lead up to their wedding, the groom met with his solicitor and accountant and made arrangements for a financial agreement to be prepared, all the while, the bride was completely unaware of the his intention to propose a financial agreement.
The man’s solicitor went so far as scheduling an appointment for the bride to meet with another solicitor, for the purpose of obtaining “independent” legal advice. That solicitor was provided with a copy of the financial agreement before the bride had any knowledge of the proposed agreement or that a lawyer had been engaged on her behalf.
By this time, members of the wife’s family had already travelled to attend the wedding. The bride did not see the financial agreement until she was taken to the office of the solicitor engaged on her behalf.
That solicitor told the woman her intended husband was worth about $20 million and that she would be ill-advised to sign the financial agreement. However, both parties signed the agreement and the wedding went ahead.
A few years later, following the pair’s separation, the wife said she had been placed in the invidious, if not impossible position, that the marriage would not go ahead if she did not sign the financial agreement.
The wife alleged she did not receive any advice from the solicitor in relation to the effect of the agreement on her rights. Whilst she conceded she knew what she was doing at the time of signing the agreement, she also argued that she felt pressured and that there was no other option but to sign the financial agreement in circumstances where the wedding was imminent.
The court found that the will of the wife was not “overborne by the husband’s conduct” and therefore the financial agreement should not be set aside. The court concluded:
- The wife was aware of the content of the financial agreement she had signed
- The wife’s experience with litigation (from the breakdown of her first marriage) meant that she understood the legal and binding effect of the document
- The wife was not in a disadvantageous position in her dealings with the husband
- The pressure that the wife felt to enter into the financial agreement was not as a result of the husband’s conduct, but rather an impression she had as to whether the marriage would go ahead if she declined to sign the financial agreement
The court said it was not ideal for the husband’s solicitor to assist the wife in obtaining independent legal advice, however the integrity of the advice given to the wife was sound.
Here at Michael Lynch Family Lawyers, we do not draw up financial agreements, or “pre-nups”. However, if you need advice on an agreement drawn up elsewhere or any other aspect of family law, please contact our office on: (07) 3221 4300 or email us at: [email protected]
