There is a new Bill before Parliament to strengthen and simplify Pre-nuptial or Pre-relationship Agreements.
For those that enter into such agreements prior to marriage, it would be fairer to change their marriage vows to take the other person for better or worse or subject to this agreement.
There is no requirement that such agreements be in any way fair. A person can enter into a Binding Financial Agreement by which the other person agrees to have their children and look after them in their career. But if the marriage comes to an end, they may not be entitled to a cent. The Courts will uphold this agreement, provided that both parties signed them before independent Australian Lawyers.
Nothing is likely to produce more unfairness and unhappiness than the Financial Agreement provisions. They have been in effect since 2000 for married couples and much longer for de-facto couples. The Parliament wants to support the independence and bargaining power of parties entering into a marriage or a relationship and to avoid them getting involved in Court proceedings.
But mostly people in love with hope for the future are often not in the best position to negotiate a fair resolution. Nobody knows what the future holds. However, what can be stated with fair certainty is that most Financial Agreements will mean that the weaker economic party, often the woman, will sign away all her entitlements for no particular reason and be left destitute with her children in the event of separation. Of course responsible lawyers will try to prevent this occurring. However, there is no requirement for the lawyer who signs off on the agreement to be experienced in Family Law.
There are huge risks with such agreements; for the parties entering into them and for the lawyers who sign off on them.
Financial Agreements can be suitable, particularly for second marriages, where there are already children whose interests need to be protected.
So watch this space and we will fill you in as to whether the new legislation comes into effect. But parties are on notice that they are generally mad to sign away their entitlements and with absolute assurance, if the relationship breaks down sometime in the future, they will bitterly regret their decision.
It is a huge responsibility for family lawyers and many refuse to be involved with Financial Agreements because of the risk involved. But also because the immorality of allowing clients to sign up to agreements they know they will come to bitterly regret. At least if somebody wants to enter into such an agreement, they need to make an effort to have semblance of fairness inserted in the agreement, although this is rarely the case.