Senior Associate and Family Lawyer Hayley Condon delves into the thin veneer of dating and what real relationships are likely to go through. Given the high failure rate of relationships, Hayley discusses financial agreements or a pre-nup as they are sometimes called.
As with anything in life, including love, there are no guarantees; however a Financial Agreement (pre-nup) will give the financially stronger party in the relationship or the couple the most protection possible in terms of preserving their respective property if their relationship ends in the future.
Finding love – a real true love – is a quest that we will all embark upon at some point in our lives. Just as Sophie Monk is hopeful of finding her Prince Charming in this season of the Bachelorette and living happily ever after, singletons from all around the globe are taking advantage of the new world of dating in their search for everlasting love.
Gone are the days of conventional dating when you would meet a potential suitor through work, being introduced by friends or family or out on a Saturday night! With the arrival of online dating sites and dating apps there has been a significant change in how many of us are finding our partners and indeed what we are looking for in a partner.
But do sophisticated and secret algorithms used by online dating sites and dating apps designed to match its customers with similar personality traits, really increase our chances of finding “the one”??? And for some people, the search for love does not stop at online dating but with an appearance on reality TV. This dating platform has become the newest method utilised by confident singletons to find their soul mate – it involves a bevy of men, or beauties as the case may be, competing in a ‘hunger games’ style format against each other to win the heart of their Bachelorette or Bachelor.
But with all of these seemingly foolproof options now available to single people looking for love, why is it that the data is consistently showing relatively high rates of relationship breakdown.
Data released by the Australian Bureau of Statistics indicates that in 2015 the highest rate of divorce for males was between the ages of 45 – 49 years and for females between the ages of 40 – 44 years with the median age at divorce for males being 45.3 years and females 42.7 years. Based on the data, it can be estimated that 1 in 3 marriages in Australia will end in divorce. There is not as much data available about separation rates between unmarried couples; however a study by the Australian Institute of Family Studies in 2013 suggested that unmarried couples are more than twice as likely to break up.
So how can single individuals, especially those who have been through a previous relationship breakdown, protect the property that they have accumulated throughout their life while they persist in the age old quest to find “real true love”??
Part VIIIA and Part VIIIAB of the Family Law Act give couples the ability to enter into a Financial Agreement (commonly referred to as a pre-nup) which enables them to regulate their financial affairs in the event their relationship was to breakdown in the future. Part VIIIA of the Act applies to couples contemplating marriage (Section 90B) or are married (Section 90C) with Part VIIIAB applying to couples contemplating entering into a de facto relationship (Section 90UB) or are in a de facto relationship (Section 90UC).
These provisions of the Act allow couples at an early stage in their relationship to enter into a Financial Agreement(pre-nup) which stipulates how, in the event of the breakdown of their relationship, all or any of the property and financial resources owned by either of them or jointly (whether acquired prior to the relationship or during the relationship) is to be dealt with and regarding the issue of payment of spousal maintenance, if any.
For these types of agreements to be binding upon the parties to them both partners must, before signing the Financial Agreement (pre-nup), obtain legal advice from separate legal practitioners qualified to practise in Australia as to the effect of the agreement on their rights and about the advantages and disadvantages of making the agreement.
Both partners must also provide full disclosure to the other of their assets and financial resources prior to entering into the Financial Agreement (pre-nup). If this does not occur, then it may give the other partner a basis to set the Financial Agreement aside after separation.
Such agreements can certainly reduce stress surrounding the issue of how property and financial resources will be divided after the couple separate and the uncertainty and expense of litigating property settlement and/or spousal maintenance issues before a Family Law Court.
So are these types of agreements worth putting in place?
As with anything in life, including love, there are no guarantees; however a Financial Agreement (pre-nup) will give the financially stronger party in the relationship or the couple the most protection possible in terms of preserving their respective property if their relationship ends in the future. Seinfeld fans will recall the hilarious scene where George tells Susan he wants a pre-nup agreement – George did this to try to upset Susan so the marriage would be called off or postponed (another Kramer idea!), but there is truth behind this that suggesting a pre-nup may upset your partner-to-be (Seinfeld Scene).
Due to the work involved in putting these types of agreements together they do not come cheap, but if your relationship ends at a point where your former partner is eligible to make a claim against you for property settlement under the Family Law Act, the cost you can incur in defending such a claim, even a weak claim, will normally well and truly exceed the legal costs expended in making the Financial Agreement in the first place.
Finally, if couples are considering entering into a Financial Agreement (pre-nup) it is important to consult a legal practitioner that practises in this area and is suitably qualified to give advice in relation to a Financial Agreement, otherwise you run the risk that all requirements may not be met under the Act and that the Financial Agreement will not be regarded as binding and therefore may not stand up at a later date after separation.
So will it be Stu, Apollo or Jarrod that reigns supreme and wins Sophie’s heart.
Whoever the lucky suitor is Sophie should give serious consideration to putting a Section 90UB Financial Agreement in place to protect the property that she has acquired during her time in Hollywood, as statistically, there is a very real risk that her fairytale romance will end in the future.
If you require assistance in putting a Financial Agreement place, please contact our Family Law and Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071.
We have a dedicated family law team that practice exclusively in this complicated area.
