In a recent Full Court decision of the Family Court, it was emphasised that it was not the bargain struck or the fairness of these Agreements (from a property settlement outcome) that was important. Instead, what was important was that the Agreements were drafted strictly pursuant to the Family Law Act and that due process had been carried out and that in all respects the process in which the Agreement signed was a fair and proper process. In other words, even if an Agreement provided for one party to retain all the assets and the other party to get nothing, then such an Agreement can survive a future challenge if it is done properly.
Decisions such as these in the Court highlight the necessity for client’s seeking to enter into Prenuptial Agreement to make sure they get expert advice from a Specialist Family Lawyer to ensure that the Agreements are drafted in such a manner to comply with legislation, latest case law and to give you the best advantage of the Agreement standing up to any challenge in the future.
We do not encourage wealthy clients to give their finance nothing in the event of a separation 20 years down the track. Even though the Court has said that can be done if it is done properly, there are still concerns that the Law may change over time and what may be seen as proper now may not be seen as proper in 10 or 20 years’ time. As Accredited Family Law Specialists, we always recommend, especially in big money cases, that some provision made for the non-wealthy spouse is neither insignificant nor nominal.