Is your Foreign Prenuptial Agreement Valid in Australia?

Why Prenuptial Agreements from another country don’t apply in Australia

William Sloan | Senior Associate | Kim Wilson & Co Family Lawyers

Sadly, you and your spouse are no longer living together ‘happily ever after’. You have separated and are now heading for divorce. You may still have a few tantrums and tears. However, you are confident that the prenuptial agreement you signed when you lived in your former country will be your saviour. WRONG! WRONG! WRONG!

You can’t rely on your prenuptial agreement from another country.

In Australia, prenuptial agreements are called “financial agreements” and they have been available in Australia since 2000. When a couple’s marriage breaks down, a spouse can make a claim against the other spouse’s assets. In short, the claim is for a “property settlement.” To make a property settlement claim in Australia, the spouses do not need to be Australian citizens. The claim can be made if one spouse is a resident or even if one spouse happens to be present in Australia on the day the claim is made. Consequently, as soon as you arrive in Australia, you immediately become exposed to potential claims for a property settlement. And, you also do not need to live in Australia for a certain period of time before becoming exposed to a potential claim. If your spouse makes a claim for a property settlement in the Family Court, can you rely on your prenuptial agreement from your former country? The short answer if NO! Your prenuptial agreement does not stop a claim for property settlement being lodged in the Family Court. The most the spouses can do is inform the Family Court about the existence of the prenuptial agreement. However, the Family Court is NOT BOUND TO FOLLOW IT. In other words, the Family Court can go ahead and give a spouse assets from the other spouse despite that it may be completely different to what is stated in the foreign prenuptial agreement.

What are your options since your foreign prenuptial doesn’t apply in Australia?

If you would like the terms of your foreign prenuptial agreement to apply in Australia, you only have one option. You need to get a new financial agreement in Australia. Can you use the terms of your foreign prenuptial agreement or do you and your spouse have to ‘strike a new deal’? The short answer is, YES, you can use the same terms. The terms of your new Australian financial agreement can be more or less the same as your foreign prenuptial agreement. In other words, the Australian agreement can state that the spouses shall get the same distribution as they would have received under the foreign agreement. However, before you think that you can merely ‘copy’ your foreign agreement so that you and your spouse can sign it in Australia, think again. The requirements for an Australian financial agreement are quite technical and very strict. The Australian Family Court will disregard financial agreements that do not meet the legislative requirements.

What are the Australian requirements for a financial agreement?

Some of the key requirements include:

• Each spouse must get detailed independent legal advice. That means each spouse must have their own lawyer from different law firms acting for them.
• One lawyer will prepare the first draft of the agreement.
• The other lawyer reviews the draft agreement and suggests amendments that might be required.
• When both spouses are happy with the terms of the agreement, they sign it.
• The two lawyers involved in the agreement must each sign a separate certificate to confirm the necessary detailed advice was given to the respective spouse.
• When both spouses and their lawyers sign the agreement, the agreement is binding.

Contact an expert Family Lawyer for advice

Not every marriage will end in divorce. And, therefore, not every spouse will need to rely on their prenuptial agreement. However, if you don’t update your foreign prenuptial agreement, and your marriage fails, you can count on the Family Court disregarding the agreement. Don’t wait until ‘the horse has bolted’. Update your foreign prenuptial agreement so that you have certainty about your position in Australia.

Contact Kim Wilson & Co Family Lawyers, Telephone (08) 6380 3900 or send an email to kwclegal@kimwilson.com.au.