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Is my foreign pre-nuptial agreement enforceable now I'm living in Australia?

While you went into your marriage with dreams of living happily ever after, a prenuptial agreement gave you the comfort of knowing that you were covered just in case things didn’t work out. Now that you’re living in Australia though, you’re not sure whether your foreign prenuptial agreement still stands under Australian law.

Regardless of your citizenship, a foreign prenuptial agreement is not binding

The minute you land in Australia, you’re bound by Australian law, regardless of whether you are a citizen or a permanent resident here. In a divorce, either partner can make a claim over the assets of the marriage. This is called a property settlement claim, which is made in the Family Court. Either party to the marriage can make a property settlement claim, even if a prenuptial agreement was signed by them.

While you can let the Family Court know that a prenuptial agreement exists, they’re not bound to enforce it. This means that everything you had agreed upon before you married can be ignored, and a different order may be made. That’s why it’s a good idea to speak to a family law specialist before you go to the Family Court.

Can I get a new prenuptial agreement made in Australia?

Yes, Australia does allow prenuptial agreements that are created here. They are called binding financial agreements, and while you can include similar terms as your original prenuptial agreement, you are required to follow very specific rules to ensure it’s valid in Australia. If these rules are not followed to the letter, the Family Court may and will ignore the agreement. These include:

  • You both need to have legal advice that is completely independent of each other. The lawyers must be practicing law in Australia at the time the advice is given;
  • The agreement must be in writing and include a detailed list of all your assets, liabilities, income and expenses;
  • Once you agree on the terms of the agreement both you and your lawyers must sign the agreement; and
  • The lawyers for both parties need to sign a certificate confirming that they gave detailed advice.

Do I need to get a binding financial agreement before I get married?

A binding financial agreement can be created before or during your marriage. It is also possible to create a binding financial agreement while in a de facto relationship.

If you’d like to create a binding financial agreement or find out how to protect your assets during divorce, contact one of our experienced advisors at Pathway Lawyers & Migration Agents.

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