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While it may not be your idea of romance, many couples planning to marry are opting to enter into a financial agreement commonly known as a pre-nuptial agreement, or a ‘pre-nup’ before the big day.

It depends on the individual circumstances of each couple as to whether a pre-nup is appropriate. It can be difficult to plan for the possibilities of the future, particularly for young couples looking to protect modest assets brought into the relationship, or planning to have children. Pre-nups are more commonly sought by couples entering into second marriages, or entering into marriage for the first time later on in life when assets have already been accumulated.

There are very specific requirements to be met before a pre-nup is considered binding, and it is essential that each party seeks independent legal advice from experienced family lawyers to ensure that the necessary steps are taken and the appropriate advice is given. Even if the document itself ticks the boxes required by law to be binding, there is potential for it to be set aside by the Court.

One ground for setting aside a pre-nup is that the document was signed under duress, or illegitimate pressure. It is largely accepted that an “ink on the tuxedo agreement” is at risk of being set aside, that is a pre-nup that has been signed by the parties at a time which is very proximate to the wedding date.

In a 2009 matter, the husband provided the pre-nup to the wife for signing within five days of the wedding, threatening to cancel the wedding unless she signed. The wife was pregnant and about to return to Thailand where it was expected that she would return as a married woman. The Court set aside the pre-nup as there had been illegitimate pressure placed on the wife.

It is unclear how close to the wedding a pre-nup can be “safely” signed, and consideration will be given to the individual circumstances of each matter. Seeking advice from an experienced family lawyer will assist each couple to make the most appropriate decision.

For more information, listen to our podcast on prenups with Best Wilson Buckley Family Law, Director, Reagan Wilson.

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