In Australia there are a number of financial agreements which fall under the Family Law Act (“FLA”) – these are agreements before marriage which is normally called a prenuptial agreement. There are also agreements made during marriage being a post-nuptial agreement and after separation or divorce.
Thai Prenuptial Agreements for Australian
The prenuptial agreement can be made under the following circumstances:
- – After a divorce how is the property divided;
- – Maintenance after a divorce;
The basics of the prenuptial agreement is it validity under both Thai law as well as Australian law. This calls for an expatriate lawyer who knows both sides of the divide. In order to have a proper prenuptial agreement you need to ensure that the agreement is:
- – The agreement is in writing;
- – The agreement was made in contemplation of the parties entering into a marriage;
- – There are no other agreements between the parties in the event of a divorce;
- – The prenuptial agreement was registered with the marriage in Thailand at the district office.
In order for the agreement to be binding the following would need to be followed under both Thai and Australian laws. These are the basics and you need to seek proper legal advice before embarking on drafting a prenuptial agreement and marriage itself. To be biding it:
- – The agreement was signed by both parties before two competent witnesses;
- – Each party received independent legal advice and understood the agreement;
- – There is proof from a law firm confirming the agreement was understood by your wife;
- – The prenuptial agreement has not been terminated or set aside by a court of law;
- – Each party has a copy of the agreement;
If these requirements are fulfilled, the court may make any necessary orders for the enforcement of the financial agreement. The most common legal defence against the prenuptial agreement during a divorce would be:
- – The agreement was obtained by fraudulent means;
- – The agreement was drafted to defraud a creditor of one of the parties;
- – The agreement is void, voidable or unenforceable;
- – The agreement was drafted and now circumstances have changed – Illness or disability;
- – One party to the agreement engaged in unconscionable conduct;
Note that in addition to any court ruling the court can make an order for spousal maintenance (despite what is in the agreement) if the court is satisfied that, taking into account the terms and effect of the agreement, a party was unable to support themselves without a pension. Also note that attempting to use a prenuptial agreement to avoid insolvency is going to have the prenuptial set aside should the creditor make an application to court. Also note that you cannot put any conditions into a prenuptial that would be viewed as illegal or immoral.
Also seek proper legal advice before you get married. Laws do change and there is no lawyer who can provide you with an ‘iron-clad’ agreement which the courts cannot set aside due to changed circumstances or other material effects which might affect one of the parties.