The Basics: Pre-nuptial agreements

The Property (Relationships) Act 1976 applies to division of relationship property, unless the partners have agreed otherwise. Such an agreement has to be a valid written Agreement made pursuant to the Act.

While these Agreements are sometimes called Pre-nup Agreements, they do not have to be made prior to a marriage. They can be made anytime during a marriage, a de facto relationship or a Civil Union.

Since there is a general presumption of equal sharing after 3 years of a relationship, and sometimes one partner has considerably more property than the other at the start of the relationship, these Agreements are often entered into before the 3 years are up.

Deciding what to provide for in one of these Agreements is often difficult. This is because you are providing for what might happen in the future if your relationship were to break down, or for when one partner dies.

These Agreements are especially useful in second relationships, when there might be children from prior relationships for whom each partner wants to make provision for in their respective Wills. An Agreement may restrict the division of property on death to the surviving partner so that the deceased’s partner still provides for his or her children from a previous relationship.

Deciding what should happen in the future over division of property is often difficult, especially for older couples with children from previous relationships. You will need guidance from a good and experienced family lawyer to help you decide what is best to do for your partner and your children, and to ensure that what you decide is carefully documented so problems do not arise in the future.