Prenuptial Agreement - Template, Sample Form Pro · AU-law

INSTRUCTIONS FOR USE:

This Binding Financial Agreement template is provided for information purposes only and is not a substitute for legal advice. Each party should obtain independent legal advice before signing this Agreement.

For this Agreement to be binding, both parties must each receive independent legal advice from a separate Australian legal practitioner.

Under section 90G of the Family Law Act 1975 (Cth), a financial agreement is binding on the parties only if:

(a) the agreement is signed by all parties; and

(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time the advice was provided, of making the agreement; and

(c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and

(d) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and

(e) the agreement has not been terminated and has not been set aside by a court.

This instructions page is provided as a guide and may be removed before signing.

BINDING FINANCIAL AGREEMENT

Made before marriage under section 90B of the Family Law Act 1975 (Cth)

This Binding Financial Agreement ("Agreement") is made on ________ between the following parties (collectively the "Parties" and individually a "Party"):

________
Address: ________

And:

________
Address: ________

(1) RECITALS

(a) This Agreement is made under the Family Law Act 1975 (Cth) (the "Act").

(b) ________ was born on ________ at ________.

(c) ________ was born on ________ at ________.

(d) The Parties commenced their relationship on ________.

(e) The Parties reside, or intend to reside, together at the following address: ________.

(f) This Agreement is made in contemplation of marriage pursuant to section 90B of the Act.

(g) The Parties intend to marry one another on or about ________.

(h) Both Parties are committed to pursuing a genuine domestic relationship and a shared life together as a married couple.

(i) Notwithstanding the foregoing, the Parties acknowledge the possibility that the relationship may break down at some time in the future.

(j) The Parties enter into this Agreement prior to their marriage in order to provide certainty about the distribution of property and the financial arrangements between them in the event of a breakdown of the relationship.

(k) The Parties intend that, in the event of a breakdown of the relationship, any property owned by them at the date of separation will be distributed in accordance with this Agreement, whether owned jointly or separately and whether acquired before or after the date of this Agreement.

(l) The Parties intend that, to the maximum extent permitted by law and in the event of a breakdown of the relationship, the operation of Part VIII of the Act and any other laws that would otherwise govern the division of their property be ousted and replaced by the terms of this Agreement.

(m) The Parties acknowledge that, pursuant to Part VIIIA of the Act, by entering into this Agreement the matters of property distribution, financial arrangements and spousal maintenance will, in the event of a breakdown of the relationship, be dealt with in accordance with the terms of this Agreement.

(n) The Parties intend this Agreement to constitute a final settlement of their respective rights in relation to the matters set out within it.

In consideration of the prospective marriage between the Parties and the mutual promises set out in this Agreement, the Parties agree as follows:

(2) GENERAL ACKNOWLEDGEMENTS

(a) Each Party confirms that they have made complete, honest and accurate disclosure to the other regarding their financial position, including assets, liabilities, income and expenses, as set out in this Agreement.

(b) Each Party confirms that, before executing this Agreement, they were given full, fair and reasonable disclosure of the property and financial position of the other Party.

(c) Each Party confirms that they are satisfied with the completeness of the disclosures made by the other Party.

(d) Each Party voluntarily waives any further rights to disclosure of property or financial obligations of the other beyond the disclosures provided in this Agreement.

(e) Each Party confirms that they fully understand their rights and obligations in relation to the other Party and the other Party's financial position, and require no further information regarding any matter dealt with in this Agreement.

(f) Each Party confirms that they are entering into this Agreement freely and voluntarily.

(g) Each Party confirms that they are not under duress and have not been coerced to execute this Agreement.

(h) Each Party confirms that they have not been pressured to sign this Agreement by any other person, including the other Party.

(i) Each Party confirms that they have been given sufficient time to review this Agreement.

(j) Each Party has engaged their own legal practitioner and has received independent legal advice about their rights and obligations under this Agreement.

(k) The Parties agree that this Agreement was not unconscionable at the time of its execution.

(l) This Agreement is binding on the heirs, executors, administrators and assigns of each Party.

(m) This Agreement will survive the termination of the marriage of the Parties, whether by divorce, death or otherwise.

(3) CHILDREN

(a) The Parties acknowledge that this Agreement does not, and cannot, deal with the maintenance, welfare or living arrangements of any child of the relationship, and that such matters are governed by the relevant provisions of the Act.

(b) As at the date of this Agreement, the position of the Parties in relation to children is as follows: ________.

(4) PROPERTY DIVISION

FINANCIAL CIRCUMSTANCES

(a) For the purposes of this Agreement, the "Financial Circumstances" of a Party means the total direct and indirect financial circumstances of that Party, taking into account all income, assets and liabilities, including:

(I) all earnings of that Party from income, salary, wages, dividends, investments or otherwise;

(II) all earnings, property and financial resources received directly, indirectly, or via another person or beneficiary;

(III) all financial resources of that Party, including superannuation interests, life insurance policies, any likely inheritance, and any rights under a discretionary trust;

(IV) any property disposed of in the 12 months immediately before or after the date of separation, whether by sale, transfer, assignment, gift or otherwise;

(V) all debts of that Party, including home loans, credit card debts, personal loans, business loans, tax liabilities and HECS-HELP debts;

(VI) the fair market value of all assets and liabilities forming part of that Party's Financial Circumstances.

(b) ________ warrants and represents that Schedule 1 contains a complete, honest and accurate representation of their Financial Circumstances at the date of this Agreement.

(c) ________ warrants and represents that Schedule 2 contains a complete, honest and accurate representation of their Financial Circumstances at the date of this Agreement.

(d) The Parties warrant and represent that Schedule 3 contains a complete, honest and accurate representation of any assets and liabilities held jointly between the Parties at the date of this Agreement.

PROPERTY GENERALLY

(e) The Parties acknowledge that, in the event of a breakdown of the relationship or the death of one Party, any property owned at the date of separation or death will be distributed in accordance with this Agreement, whether owned jointly or separately and whether acquired before or after the date of this Agreement.

(f) All jointly owned property, including any property set out in Schedule 3, regardless of how or when acquired, will remain the property of both Parties and is referred to as "Joint Property".

(g) Unless this Agreement provides otherwise, all property of the Parties will be treated as property owned solely by one of the Parties ("Separate Property"). Property will not be treated as Separate Property if it is set out in Schedule 3, if there is evidence that it is owned jointly, or if it otherwise qualifies as Joint Property.

(h) Where a Party mixes Joint Property and Separate Property, the mixed property will be treated as Joint Property unless a Party proves it is their Separate Property.

(i) Nothing in this Agreement prevents or invalidates any transfer of property from one Party to the other, whether by gift or for consideration.

DEBTS

(j) The Parties acknowledge that, in the event of a breakdown of the relationship or the death of one Party, any debts at the date of separation will be dealt with in accordance with this Agreement, whether held jointly or separately and whether acquired before or after the date of this Agreement.

(k) Any jointly held debt or debt otherwise acquired by the Parties together, including any debt set out in Schedule 3, regardless of how or when acquired, will remain the debt of both Parties and is referred to as a "Joint Debt".

(l) Unless this Agreement provides otherwise, any debt will be treated as a debt owned solely by one of the Parties ("Separate Debt"). A debt will not be treated as a Separate Debt if it is set out in Schedule 3, if there is evidence that it is held jointly, or if it otherwise qualifies as a Joint Debt.

(m) Unless otherwise stated in this Agreement, any encumbrance or indebtedness secured against or attributable to any item of property a Party receives under this Agreement will be the sole responsibility of the Party receiving that property.

(n) Any debt incurred by a Party after the date of separation will be the responsibility of that Party, who will indemnify and keep indemnified the other Party against all costs, expenses and losses relating to that debt.

(o) As of the date of separation, neither Party will incur any further debt or liability on the other Party's credit, and any such debt will be the debt of the individual Party regardless of whether it was incurred on joint credit.

(p) As of the date of separation, neither Party will borrow money or incur debts in the other Party's name or for which the other Party would be responsible.

(q) As of the date of separation, each Party will be responsible for any debts, loans or liabilities in that Party's own name.

SUPERANNUATION

(r) The Parties agree that, in the event of a breakdown of the relationship, the superannuation interests of each Party are to be dealt with as follows: ________. This Agreement deals with superannuation interests in accordance with Part VIIIB of the Act.

DISTRIBUTION OF ASSETS

(s) The Parties agree to the following distribution of assets in the event of a breakdown of the relationship: ________

(t) Save as set out in this Agreement, the Parties make no further claims to any asset in the possession of the other.

SPOUSAL MAINTENANCE

(u) The Parties agree that the arrangements concerning spousal maintenance in the event of a breakdown of the relationship are as follows: ________.

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(w) The Parties acknowledge that, pursuant to section 90F of the Act, this Agreement does not exclude or limit the power of a court to make an order for maintenance of a Party if that Party was unable to support themselves without an income tested pension, allowance or benefit at the time the Agreement came into effect.

(5) INDEPENDENT LEGAL ADVICE

(a) Each Party acknowledges that, before signing this Agreement, they received independent legal advice from a legal practitioner about the effect of this Agreement on their rights, and about the advantages and disadvantages, at the time the advice was provided, of entering into this Agreement.

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(6) TERMINATION

(a) The Parties may only terminate this Agreement by including a provision to that effect in another financial agreement, or by making a written termination agreement, in accordance with section 90J of the Act.

(b) This Agreement will continue to operate despite the death of either Party and will in such circumstances operate in favour of, and be binding on, the legal personal representative of the deceased Party.

(7) GENERAL PROVISIONS

(a) This Agreement contains the entire agreement between the Parties about the financial matters dealt with herein and replaces any earlier written or oral agreement between them.

(b) Each Party will promptly sign and give to the other all documents necessary to give effect to this Agreement.

(c) If any provision of this Agreement is held by a court to be invalid, unenforceable or void, that holding will not invalidate the remainder of this Agreement, and the relevant provision will be deemed amended, reduced in scope or modified only to the extent required for validity and enforceability.

(d) In the event of a dispute regarding this Agreement, the Parties will attempt to resolve the matter through negotiation or mediation before commencing court proceedings.

(e) Each Party agrees to act in good faith towards the other in relation to the matters addressed in this Agreement.

(f) The Parties acknowledge that their circumstances may change, but it is their intention to be bound by the terms of this Agreement at all times.

(g) The headings in this Agreement are included for convenience only.

(h) This Agreement is binding upon and enures to the benefit of the Parties and their respective heirs, executors, administrators and assigns.

(i) This Agreement is governed by the Family Law Act 1975 (Cth) and the laws of ________, which will govern the interpretation of this Agreement and the status, ownership and division of property between the Parties wherever they may from time to time reside.

IN WITNESS WHEREOF the Parties have executed this Agreement.

SIGNED by ________:


_________________________________
________

____________________
DATE

In the presence of:


_________________________________
WITNESS — ________

Address: ________

SIGNED by ________:


_________________________________
________

____________________
DATE

In the presence of:


_________________________________
WITNESS — ________

Address: ________

SCHEDULE 1

Financial Assets, Income and Liabilities of ________

The following is a complete, honest and accurate list of the Financial Circumstances of ________, including all assets, income and liabilities:

________

SCHEDULE 2

Financial Assets, Income and Liabilities of ________

The following is a complete, honest and accurate list of the Financial Circumstances of ________, including all assets, income and liabilities:

________

SCHEDULE 3

Jointly Held Financial Assets, Income and Liabilities

The following is a complete, honest and accurate list of the jointly held assets, income and liabilities of the Parties:

________

DECLARATION

I, ________, acknowledge, agree and declare that the following is true and correct:

• I am in a genuine domestic relationship with ________ and have been since ________.
• I am committed to having a shared life with ________ on a genuine domestic basis.
• I intend to marry ________ on or about ________.
• In this Agreement I have made complete, honest and accurate disclosure regarding my financial position including my assets, liabilities, income and expenses.

DATED this ________

SIGNED _________________________________

________

CERTIFICATE OF INDEPENDENT LEGAL ADVICE

I, ________ (solicitor name) of ________ (firm and address) in ________ (state/territory), an Australian legal practitioner, hereby certify pursuant to section 90G of the Family Law Act 1975 (Cth):

I met ________, a Party to the attached Financial Agreement ("Agreement"), in my professional capacity, separate and apart from ________. I acted solely for ________ and advised them about the effect of the Agreement on their rights, and about the advantages and disadvantages, at the time the advice was provided, of making the Agreement. ________ executed the Agreement of their own free will, without any fear, threats, compulsion or influence from ________ or any other person.

CERTIFIED at ________ (town/city, state/territory)

DATED this ________

SIGNED _________________________________

PRINT NAME _________________________________

PRACTISING CERTIFICATE NUMBER ________

DECLARATION

I, ________, acknowledge, agree and declare that the following is true and correct:

• I am in a genuine domestic relationship with ________ and have been since ________.
• I am committed to having a shared life with ________ on a genuine domestic basis.
• I intend to marry ________ on or about ________.
• In this Agreement I have made complete, honest and accurate disclosure regarding my financial position including my assets, liabilities, income and expenses.

DATED this ________

SIGNED _________________________________

________

CERTIFICATE OF INDEPENDENT LEGAL ADVICE

I, ________ (solicitor name) of ________ (firm and address) in ________ (state/territory), an Australian legal practitioner, hereby certify pursuant to section 90G of the Family Law Act 1975 (Cth):

I met ________, a Party to the attached Financial Agreement ("Agreement"), in my professional capacity, separate and apart from ________. I acted solely for ________ and advised them about the effect of the Agreement on their rights, and about the advantages and disadvantages, at the time the advice was provided, of making the Agreement. ________ executed the Agreement of their own free will, without any fear, threats, compulsion or influence from ________ or any other person.

CERTIFIED at ________ (town/city, state/territory)

DATED this ________

SIGNED _________________________________

PRINT NAME _________________________________

PRACTISING CERTIFICATE NUMBER ________