One of the most important aspects of work that the experts at Family Lawyers Joondalup are often asked to do for clients who are planning to marry is to draw up and formalise a prenuptial agreement. Often spoken of whenever a high-profile celebrity marriage is ending, a prenuptial agreement is a document, that basically states how any property and finances will be divided should the couple divorce.
To many people, the idea of a creating prenuptial agreement before marriage seems a very negative and even cynical action. They would claim that it effectively says the couple does not trust each other enough to not want to share property fairly if the marriage ends.
Another argument against prenuptial agreements is that they are basically saying that the couple does not have enough faith in their relationship, and the marriage to follow, and obviously do not believe that it will last ‘until death us do part’.
This is a perfectly reasonable point of view which is why a lot of thought has to be taken before a couple take the step of asking their respective family lawyers to prepare the prenuptial agreement. This brings us to another potential pitfall and that is the possibility that the couple cannot agree on what the prenuptial agreement should contain.
It is often the case that a prenuptial agreement will relate to financial matters and is drawn up when one of the individuals has significantly greater wealth than the person they are marrying. The question is whether it makes for the most trusting and loving starts to a marriage if there is a disagreement over what happens to finances in the future.
Of course, the counter-argument to that is that by drawing up a prenuptial agreement the couple is avoiding the possibility that, should their marriage end in divorce, there should not be long, drawn arguments over money, property, and other matters. It might be said that sorting these out now, whilst the couple is obviously in love with each other, given that they are about to get married, is going to be a lot less traumatic.
One point which is worth considering is that while prenuptial agreements as seen as a way for the couple to avoid them having to go through an arduous divorce, with regards to wrangling over finances, there is another consideration. Whilst it is certainly a benefit to the couple, the main reason many of them opt for it is to spare their (future) children the distress of witnessing their parents fighting during a divorce.
From a legal perspective, prenuptial agreements are called ‘binding financial agreements’, and rather than have one family lawyer create it, each individual must be represented by a separate lawyer. This ensures that any advice they receive is not conflicting, nor potentially advantageous to one of them to the detriment of the other.
The fact that two family lawyers are required obviously means two fees, but as each lawyer needs to certify the agreement in order to confirm each of the parties has received independent legal advice, then it is the only way the Family Court will accept the prenuptial agreement as valid.
Once accepted by the court, the couple is individually bound by it, and there are very few routes open for one of them to try and invalidate a prenuptial agreement. This is why each party to a prenuptial agreement must seek legal advice and think carefully before signing it.