Same-Sex Couples and Prenups: What You Need To Know

Prenuptial (prenups) or binding financial agreements (BFA) are legally binding agreements between you are your partner about your property. The Family Law Act 1975 (Cth) (the Act) allows married couples and de facto partners, including same-sex couples, to make these agreements without any distinction between them.

De Facto Relationship

To be considered in a de facto relationship with your partner, the Court considers your relationship as a couple living together on a genuine domestic basis. They look at the following:

• Duration of the relationship;
• The nature and extent of your common residence;
• Whether a sexual relationship exists; and
• The degree of financial interdependence.

They also consider the ownership and use of your property, the care and support of children, and the reputation and public aspects of the relationship to determine whether you meet the mentioned criteria. If this sounds like your relationship, then you are likely in a ‘de facto’ relationship, and can make a BFA that is relevant under the Act.

Key Clauses

A BFA can be made at any time before, during, or after the relationship. It sets out how property is divided if the relationship ends. Its effect is that it removes the power of the Family Court to make decisions about financial arrangements to which the BFA covers. You and your partner are then bound by the terms of the agreement and cannot apply to the Court for alternative orders concerning the division of property and financial resources.

It includes all assets, liabilities and financial resources of you and your partner and how you want to distribute them. Usually, partners agree to split particular assets, distributing any joint property by ensuring any mortgages are the liability of the person who obtained them and the remaining balance is divided equally. The BFA first goes through details of your relationship to set out that it will be a financial agreement under the relevant section of the Act (either section 90UB before a de facto relationship, 90UC during a de facto relationship and 90UD after the breakdown of a de facto relationship). It should state that the agreement will relate to the whole of all financial matters in substitution for all rights of both parties under the Act.

It will then go through what both of you acknowledge as your contributions and entitlements towards particular assets. It will cover what your partner’s separate property will be if you separate and will remove your rights to claim any interest in that separate property. It will then cover your separate property and remove your partner’s rights to claim any interest in your property.

The BFA will then go through what your joint real property is, meaning your home, investment properties, land, etc. and how it will be valued and distributed. Following this, your BFA should cover what happens if you or your partner wins the lottery or inherits a sum of money and how this will be divided. Your BFA should then go through issues around maintenance and what happens if you have children regarding the property structure at that point.

Your BFA should then set out how superannuation should be divided and may include what happens to a claim for separate property if you or your partner pass away.

Other Requirements

For your BFA to become binding, you must meet certain requirements under the Act. It needs to be signed by both of you and you each need a statement, stating you had received independent legal advice about the agreement from separate qualified legal practitioners before you signed the agreement. Your lawyer needs to advise you on how entering into this agreement will affect both of your rights, the advantages and disadvantages of entering into such an agreement and whether or not it is fair to both of you.

You need to be mindful of certain circumstances where a Court can set aside your BFA. These circumstances include where there has been a failure to disclose assets or if the agreement was obtained through fraud or duress, among others. It is important to speak to a lawyer if you are concerned about whether or not your BFA will be binding and they will be able to advise you in relation to your particular situation.

***

Entering into a BFA has both advantages and disadvantages. It can make things much clearer in terms of the outcome of a property settlement in case you separate, but it can also mean you are limiting your rights to certain property if the matter had been considered by the Court. It is important to seek legal advice about your best options before entering into any such arrangement.