More frequently spouses who propose to enter into a De facto Relationships or intend to marry are wishing to minimise conflict in the event that despite their best efforts, the relationship might not work out. Since 2002 in relation to married couples and 2009 in relation to De facto and same sex couples; the legislation has provided parties with a mechanism whereby they can enter into a binding financial agreement / prenuptial agreement which will govern the separation of their finances in the event that the relationship should break down.
There are certain requirements that must be followed to ensure that such agreements are binding.
The requirements include:
(a) That each party must be independently legally advised.
(b) The Agreement needs to identify the relevant legislative section that is relying upon.
(c) The Agreement needs to comply with the Family Law Act in terms of the specifics of what is being released and on what terms.
The court has a limited ability to rectify a defective agreement, however on the whole, if those legal requirements are not met, the parties can enter into an agreement but it may not be binding.