A Prenuptial Agreement, commonly known as a prenup, is a legally binding Financial Agreement that allows couples in NSW to establish their own terms for dividing shared assets if the relationship ends. This agreement enables you to opt out of the default property division laws.

To ensure a prenup is legally enforceable, it must be prepared correctly. Specific legal requirements and provisions must be met for the agreement to hold up in the event of a separation.

Not necessarily. Even if you don’t think your assets are significant enough to require a Financial Agreement, you might be surprised at how costly it can be to rebuild your life after a relationship ends. This is why a prenup or postnup is a smart choice, even if you don’t consider yourself "wealthy."

A prenup can help safeguard your assets and shield you from taking on your partner’s debts, potentially saving you a lot of money and stress in the event of a breakup.

When it comes to the cost of creating a prenup or postnup, there are legal expenses to consider. Both parties are required to obtain independent legal advice, which can add up. Additionally, if there’s extensive negotiation between individuals and their lawyers, legal fees may increase further.

This is where working with a professional separation service can make a big difference. They can help you prepare everything needed for your Financial Agreement, streamlining the process and reducing the back-and-forth when you meet with lawyers.

Services like Simple Separation often work on a fixed-fee basis, so you’ll know exactly how much the process will cost upfront, with no unexpected expenses.

When introducing the idea of a prenuptial agreement, it’s best to start the conversation well before getting married or moving in together. Although a postnuptial agreement can still be arranged after these milestones, early discussions help clarify your financial positions and future goals as a couple. Here are some tips to make the conversation smoother:

• Choose the Right Time: Bring up the topic when both of you are calm, stress-free, and have uninterrupted time to talk. Avoid discussing it during an argument or busy periods. It can also be helpful to give your partner some notice, allowing them time to process the idea before diving into the details.

• Be Honest and Open: Clearly explain your reasons for wanting a prenuptial agreement. Focus on shared financial goals and the security it can provide for both of you in the future.

• Be Transparent: Both partners need to disclose their financial situations, including assets, debts, and investments, to create a fair and effective agreement.

• Reassure About Fairness: If your partner worries about getting an unfair deal, you can explain that both parties are required to receive independent legal advice. This ensures that each person fully understands the agreement before it’s finalized.

You can also let your partner know about Simple Separation, and our Prenup/Postnup fixed-price services, which can make the process smooth and affordable for you both.

A prenuptial agreement addresses the financial aspects of your relationship with your spouse or de facto partner. Key elements typically covered include:

• Debts: Allocation of responsibility for existing and future debts.

• Investments: Division of jointly or individually held investments.

• Inheritances: Protection of any inheritances received before or during the relationship.

• Spousal Maintenance: Agreements regarding financial support, if applicable, in the event of a separation.

• Property Division: How property and assets will be divided if the relationship ends.

No. A Financial Agreement (prenup or postnup) can’t contain terms regarding child custody or support matters. These matters need to be handled separately.

What can be included is matters relating to the financial aspects of a relationship, such as investments, debts, inheritances, property division, and spousal maintenance.

Prenups and postnups are essentially the same thing—a Financial Agreement—but they are drawn up at different stages of a relationship. A prenup is created prior to marriage or cohabitation, and a postnup is created after marriage/cohabitation has commenced. As they are both ‘Financial Agreements’, they cover the same territory in terms of what’s included in the agreement, and the same key provisions apply.

Yes. This is called a postnup, and is also a Financial Agreement. The same financial aspects of a relationship are covered in both a prenup and a postnup, those being investments, debts, inheritances, property division, and spousal maintenance.

A prenup can save you the pain of negotiating distribution of your assets at the time of a breakup, when your relationship with your partner may be strained.

Many people also prefer to have a prenup set up, as it creates clarity around assets and finances during the relationship—both partners know where they stand and some of the uncomfortable feelings surrounding finances can be alleviated.

To start with:

Think about what assets you want to protect with a prenup.

Talk to your partner about your desire for a prenup, and see how they feel about it. Discuss your financial circumstances, and how you picture your financial future.

If you both agree to a prenup, there are two avenues you can take. These are:

Find your own lawyers (you each need individual legal advice when creating a Financial Agreement). Remember, legal fees can quickly add up, especially if multiple legal meetings, emails and phone calls take place.

Or

Work with a professional separation service, like Simple Separation, who handle your prenup/postnup for a fixed fee. We will assist you through the process of getting your documentation prepared, and will match each of you with legal assistance from our trusted pool of lawyers.

Once you have defined what assets will and will not be considered in the asset pool when parties separate, the Financial Agreement is then created, and each party must sign the agreement before a witness.

You can create a prenup prior to marriage or entering into a de facto relationship, or after you are already married/de facto (this is termed a postnup, but is essentially the same type of Financial Agreement as a prenup).

Yes, prenuptial agreements are legally binding in NSW. However, they can be overturned if specific legal requirements are not properly met. For more details, see the next question.

Yes, a prenuptial or postnuptial agreement in NSW can be overturned by a court under certain circumstances. One common reason is if either party did not receive independent legal advice before signing the agreement, or if the lawyers involved failed to include a declaration confirming they provided advice on the implications of the Binding Financial Agreement. Additionally, the agreement must be properly executed, meaning it must be in writing, signed by both parties, and witnessed.

Another factor that can lead to a prenup being overturned is non-disclosure. If one or both parties fail to fully disclose their financial situation, including assets and liabilities, the agreement may be invalidated. Similarly, the court may set aside a prenup if there was any unconscionable conduct or unfairness in its creation. This includes situations where one party signed under duress, undue influence, or in a vulnerable state.

Significant changes in circumstances can also render a prenup irrelevant or unfair. Examples include having children, changes in health or employment, receiving a financial windfall such as an inheritance, or entering into a business venture. Courts in NSW carefully consider these factors to determine if the agreement remains valid and equitable.

A Financial Agreement, or prenup/postnup, protects your assets in the event of a divorce by clearly defining the ownership and division of your property, financial assets, and debts acquired before and during your marriage. It can ensure that both yours and your partner's individual assets remain your own, specifies how joint assets are to be divided, and can outline spousal support arrangements, if you wish those to be included.

By having these terms agreed upon in advance of a separation, a prenup provides clarity and security for both you and your partner, and reduces potential conflicts and legal disputes.

A sunset clause is a clause in your Financial Agreement (prenup or postnup) that stipulates that the agreement is only valid until a certain date. At that point, if you wish to continue the prenup/postnup, you can either present it to your respective lawyers again, with a request to extend the date, or change the prenup so that it continues on an indefinite basis.

Alternatively, you may wish to change terms in your agreement, in which case again, you would revise the existing prenup, with independent legal advice for each partner.