No matter how a relationship breaks down, the end of a relationship can be an emotional and difficult experience. However, the strain placed on both parties and their families isn’t purely emotional, as there can also be significant financial implications. There are steps you can take to set out what will happen in the event of separation which can give you clarity and certainty in the event you decide to divorce. Read on to find out more about these options.
How Do I Protect My Money Before Marriage?
Before a marriage, you can enter into a legal document called a financial document. A financial agreement is sometimes colloquially called a ‘binding financial agreement’ or a ‘prenuptial agreement’. You can also have a discussion with your spouse about what might happen and simply agree between you about that in a verbal agreement however it is important you understand that verbal agreements are not legally binding.
If this is a step that you want to take, it is best to speak to a family lawyer who can provide you with advice based on your own personal circumstances about how best to document any agreement you reach with your spouse in a way that is legally binding.
How Do I Protect My Assets Informally?
If you don’t want to enter into a written agreement, then there are a number of practical steps you can take to protect your assets informally, including:
- Keeping separate finances, including bank accounts
- Making equal contributions to household expenses and renovations
- Considering whether you should hold real estate individually or jointly. If you hold property individually, then you must finance it with non-marital funds
- Keeping a record of all financial transactions
- Ensuring all assets you held prior to the marriage stay in your name alone. If your assets are sold, you should not roll them over into jointly owned property. If you do, then keep a record of this contribution
- Not placing money you held prior to the relationship into a jointly held asset
- Documenting any significant financial contributions from friends or family, such as loans or gifts
- Not paying out the debts of your partner
It is important to know that these steps alone will not necessarily protect your assets in the event of your marriage breaking down, however, they will help assist in identifying your contribution to the relationship, which is a consideration when determining entitlement.
How Do I Protect My Personal Assets Formally?
Financial agreements before marriage (or prenuptial agreements) may sound like something from Hollywood movies however they are legally binding documents that allow you to determine what happens if you separate. The Family Law Act which governs divorces in Australia sets out the law about how financial agreements must be prepared so that they are binding. When prepared properly, financial agreements are a useful tool to avoid a lot of distress on separation when it comes to dividing your property.
In order to be enforceable, strict legal requirements must be followed for all prenuptial agreements. The final written document must contain a statement saying that each person has received independent legal advice on how the document affects their rights and whether it is to their advantage or not. Each lawyer must also provide a signed document confirming that legal advice was given.
A prenuptial agreement can include the division of property and spousal maintenance. The document usually details with how the parties will deal with any property and financial resources acquired before, during and after the marriage. It can also cover a number of different events, such as what would happen based on the length of the relationship, or if children are born.
The agreement itself does not have to be fair. However, the process for drawing up and agreeing to the agreement must be fair for it to be legally binding. This is why both parties must seek independent legal advice from different lawyers. As part of this, both parties must make truthful disclosure of financial information and the document cannot be signed under duress. There is no need for a financial agreement to be approved by a court.
Although it’s beneficial to have prenuptial agreements drawn up before marriage, financial arrangements can also be entered into while you’re married or during separation.
Can the Financial Agreement Be Overruled?
There are very limited circumstances where a binding financial agreement can be set aside. For example, to cancel or change a financial agreement, you must be able to prove that:
- You were a victim of fraud or dishonesty;
- The agreement cannot be practically carried out (this must go beyond inconvenience);
- Since the agreement was signed, there has been a major change to a child’s care or welfare; or
- The other party acted in an unconscionable way.
How do I Protect My Assets in a De Facto Relationship?
In 2009 the Family Law Act changed so that separating de facto couples (including same sex couples) are now treated in the same way as married couples in the division of property and spousal maintenance. This means that the same law about financial agreements also applies if you are in a de facto relationship.
Much like in a marriage, a financial agreement can be entered into at any point in the relationship, even if you’re in the process of separating. If you aren’t sure whether your relationship would be defined as de facto in the eyes of the law, you should seek legal advice to understand the potential legal ramifications for your particular circumstances.
If you’re considering how to protect your assets before marriage, or are currently married but would like your assets protecting, then please get in touch to see how we can help you.