What is a postnuptial agreement and do I need one?

Published 28 Feb 2019

Prenuptial agreements are fairly well known contracts in the area of family law. They can be useful for those wishing to be sure about how they and their partner's combined assets will be divided should they ever split. But did you know there is such a thing as a postnuptial agreement; that is, an agreement made after the vows have been exchanged?

What is a postnuptial agreement?

A postnuptial is a binding financial agreement made under section 90c of the Family Law Act 1975. Essentially, it outlines what will happen to the shared assets of the couple should the marriage break down. A postnuptial can also cover the terms of spousal maintenance, both during the marriage itself or after a potential divorce.

Most importantly, a postnupital agreement can be made before or after a marriage has broken down. What this is means is that they're not limited to people in marriages that look as though they might be ending. Those in happy and healthy relationships can enter into postnuptial agreements as well.

Why do people enter postnuptial agreements?

There are many reasons married couples seek postnuptial agreements. If there are special assets - family heirlooms, for example - that one party wishes to keep, no matter what happens to the marriage, a postnuptial agreement can put that in writing.

Sometimes postnuptial agreements are made simply because couples didn't have time to get a prenuptial before they married. In those cases, the desire for a postnuptial agreement is no different to the desire for a prenuptial one - all that's changed is the timing of the agreement itself. This, however, can make a difference to the way negotiations go because spouses are more or less on equal footing once they are married.

Do I need a postnuptial agreement?

It can sometimes be an awkward thing to discuss a postnuptial agreement with your spouse if you're happily married. Making plans for a divorce that may never happen could come across as though you don't have much faith in your marriage. But there's no need for it to be so - making plans for the worst case scenario can help avoid a painful split being even more so due to protracted legal fighting over assets. Taking a proactive approach can help minimise any further damage to a relationship should your marriage not end positively.

Malouf Solicitors are experts in family law. If you need assistance in preparing a postnuptial agreement, get in touch with a member of the team today.

Please call us on 02 8833 2000 to speak with a lawyer

I would just like to say thank you to Anthony who assisted my son in his matter. He is a first home buyer and was pressured into signing a contract prior to obtaining legal advice. The contract was certainly was not the normal straight forward type. To be able to obtain the help and assistance he did from Anthony and rescind the offer the next day, was wonderful. We were able to have a stress free Christmas. I am unable to thank him enough for this. My son and our family will be contacting Anthony when we find the next property.
Kim of Sydney

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