The minute you land in Australia, you’re bound by Australian law, regardless of whether you are a citizen or permanent resident here. In a divorce, either partner can make a claim over the assets of the marriage, and Australian courts don't have to enforce a foreign antenuptial agreement if you're living in Australia.
South African Antenuptial Agreements
Unless you and your spouse enter into an Antenuptial Contract (ANC) prior to your wedding day, you are ordinarily married in community of property. This means that everything gets divided 50/50 should the marriage end. For this reason, most South Africans conclude ANCs to deal with matrimonial financial issues, to deal in advance with any issues that may arise if the relationship ultimately breaks down.
In South Africa, you can only enter an ANC prior to your marriage. Furthermore, South African law doesn't provide for financial agreements between unmarried (AKA de facto) couples.
Australian 'Binding Financial Agreements'
Unlike South Africa, Australia allows all partners - married and de facto, opposite sex and same sex - to enter what is called a 'binding financial agreement' (BFA), and you can enter a BFA at any time, including before marriage, after marriage, and even after the breakdown of the relationship. BFAs generally cover the division of the couple's assets, and deal with issues related to superannuation, and spousal and child maintenance.
Why do I need an Australian BFA? Is my South African ANC enough?
Australian courts don't have to pay any heed to foreign matrimonial agreements. This means that even if you have a South African ANC, if you are divorced in Australia and don't have a BFA in place, the Court will divide your assets in accordance with Australian law, which is very different to South African law, and which might be against the intentions set out in your ANC.
Australian courts do not generally split assets 50/50 between parties, as Australians without a BFA are not necessarily married in community. Rather, the Court places all of the assets of the spouses into a 'matrimonial pool of assets'. The Court then uses a four step process to determine the percentage of the assets to be received by each spouse, and how to deal with any future maintenance issues. The Court considers a range of matters, including both financial and non-financial contributions to the relationship and the home.
So if you're married, and living in Australia with a South African ANC in place, or if you're in a de facto relationship with no financial agreement in place, you should consider concluding an Australian BFA as soon as you have arrived in Australia, to ensure that your financial affairs are protected in the event that your relationship ultimately breaks down.
Pathway's Australian legal qualifications, together with our ongoing knowledge of your individual circumstances, mean that we are best placed to draw up a BFA for you and your partner or spouse. For expert assistance in this or other Australian legal concerns speak to our qualified lawyers.
