BFA/Pre-nup/Post-nup/Cohahitation Agreement $$$ - Any Attorneys?

[KalahariHarry]

Hi All,

I Wonder if an Aussie Attorney can give me any advice. We live in QLD and as a couple are buying our first asset together.

Myself and my partner have discussed and agreed that in the unlikely but possible event of a break-up, what each of us brought into the relationship is what we get to keep. Of course what we amass while we are together from here on out IE. Since buying assets together gets split down the line 50/50.

I Have chatted briefly to a local attorney who advised me this is no problem. However I need an attorney to set it up and she needs and attorney to act on her interests. All in all it sounds like a very expensive excercise.

Can anyone pls share or advise how to do this in a more affordable manner as we all dont have hundreds of dollars to spend on legal fees for an in-case event?

There are also other things we will need to do after the said property purchase like wills etc.

We would be looking to get a lot of these "mundane but necessary" things done as we get more settled.

Any advice will be appreciated.

Trevor

[Gerhardk]

I am not an attorney and I cannot give advice but I have seen many de-facto couples in similar position purchase assets in a discretionary trust - even a primary residence. You can also add a corporate trustee (company) that has some benefits. What works best is an individual decision based on many facts such as intention, asset type, exit plan and your risk profile.

Wills are a good thing to have especially if there are minor children.

Also keep in mind that de-facto relationships are well recognised in Australia and hundreds of dollars wont really get you far in terms of advice.

[KalahariHarry]

Thank you GerhardK. Will look into these options, yes it's tough when people quote into thousands for what seems to be signing templates :-(

[Gerhardk]

Ha ha, but keep in mind if they were not using templates it would cost you much much more at say minimum $550 per hour!

[Kurkprop]

I'm not a family law lawyer but here's my 2 cents worth:

1. The house

Have you decided whether you are buying the house as tenants in common or joint tenants? If you buy the house as tenants in common you can split the ownership into a percentage between the two of you eg one owns 75% one owns 25%. This is a good option if one of you is asset rich or is providing the bulk of the deposit. If you die, the percentage of the house that belonged to you gets distributed according to your will. Compare this to a joint tenancy, where you own the property jointly and not according to allocated proportions like a tenancy in common. If you die your joint tenant automatically gets your share of the house, it does not form part of your assets for distribution under your will. Your conveyancing solicitor should clearly explain the consequences if both a tenancy in common and a joint tenancy to you.

2. Prenuptial agreement

You can get a prenuptial agreement done (called a Financial Agreement in Oz) but if don't get it done by a lawyer, and each of you does not obtain your own independent legal advice, it is less likely to hold up in court. So not getting it done properly now because you can't afford it might cost you much much more down the track if things go to poo, (which hopefully they won't).

You can register the prenuptial agreement with the Family Court and I think each of the lawyers giving advice to the parties have to sign a certificate that they have provided independent legal advice to their client about the effect of the agreement.

The normal rules regrading contracts apply to prenups. They must have been done without any undue influence from one party over the other party (hence the requirement for both parties to obtain independent legal advice). No fraud or misleading conduct etc. The Family Court also reserves the power to set aside a financial agreement in certain circumstances (eg if the terms of the agreement are harsh and unfair).

Moral of the story: find a decent lawyer if you want a financial agreement done. Also keep really good records of each of the parties' assets and financial affairs at the commencement of the relationship (and going forwards)

And one last thing, don't quote me on this, as I said I'm not a family lawyer, but I think there may be slightly different rules for married couples vs de facto couples. I have a feeling that de facto couples are covered by state family legislation in certain states (Western Australia being one of them) as opposed to the Commonwealth Family Law Act. This illustrates another reason why you need to consult a decent lawyer- the area is too complicated to try and fudge a prenup by reading a couple of internet sites and cutting and pasting something.

All the best!