PreNuptual Agreements

A Pre Nuptial Agreements or Cohabitation Agreements,

 These agreements in various forms are available for defacto and married couples. They are able to be made before cohabitation, after the breakdown of a relationship, or during a marriage.

Although people naturally think of them as the same thing, the law about de facto separations is covered by State Legislation ( in Queensland the Property Law Act) and marriage separation agreements are covered by Section 90 of the Family Law Act.

Before

The best idea in both cases from a legal point of view is to have a written agreement BEFORE you commence a relationship. This means that you can reach an agreement while you are getting along that you may not be able to reach in the emotional maelstrom of separation.

That is great in theory, but it is very difficult to expect any romantic couple to think that they need to sign such a document that contemplates that their relationship may not last.

 It is a very delicate issue and this is probably the reason these very sensible documents are not used as often as they should be before cohabitation or marriage. As lawyers, we do our best to make the agreements less of a passion killer, by using language that is in keeping with the sentiments of a couple but also making it legal. I call them my " I love you darling , but....) agreements. For instance we usually use the person's first name and say things like " while John and Jenny are entering this agreement in the full expectation that their union will be permanent, etc, etc, despite their best endeavours it should end, etc etc)

During

Now this type of agreement is only available to married people. The Family Law Act allows an agreement during marriage so, for instance, if one party is planning a financially tricky business deal, the parties can agree on the split up of assets in anticipation of any separation. It is kind of a prenuptial agreement done mid nuptials.

After

This is the most common agreement of course. Now with defacto couples there is only one way in Queensland that you can have a legally enforceable written agreement. That is the "Recognised Separation Agreement" under the Property Law Act.

The way for married couples is more flexible. We can have either a Binding Financial Agreement under the Family Law Act or Consent Orders under the Family Law Act.

 The differences between the 2 options for married couples are profound, and the stamp duty consequences and differences between all three types of agreement are tricky and complicated and subject to change. If you have a question about this sort of thing, you would be best to email us and ask at sian@journeyfamilylawyers.com.au