Under Australian Family Law, pre-nuptial agreements are commonly referred to as ‘Prenups’, ‘Binding Financial Agreements’ or ‘BFA’s’. They are private agreements stipulating in advance how the assets and liabilities of a couple will be split up if their relationship breaks down. These types of agreement can be entered into before, during or after the relationship – whether it’s a formal marriage or just a de facto relationship. But there are strict requirements that apply to all prenuptial agreements, and you need to get them right, because any such agreement can be overturned by the Family Court if it’s not absolutely watertight. Firstly, and perhaps most importantly, to make a Binding Financial Agreement truly binding, both parties must be absolutely honest and upfront about all of their financial circumstances. Each party needs to make full disclosure of such circumstances, by providing full and correct detail concerning the whereabouts and true value of their assets, liabilities, superannuation entitlements and other financial resources. The parties must enter into the agreement freely and without any undue influence or pressure, and each should obtain their own independent legal advice regarding its terms. The Family Law Act sets out various provisions regarding prenuptial agreements, and any agreement concluded must comply strictly with the legislation in order to be binding on the parties.

If the agreement is not properly done and the love affair ends in a bust-up, there's every chance the Family Court will take a long, close look at precisely what each of the parties knew and didn’t know before they signed up to the agreement, and how much was disclosed, and what was concealed. Provided the parties received proper legal advice in the first place, they were both fully informed of their respective rights and liabilities from the start, and they followed their advice and made full disclosure of all of their interests, a prenuptial agreement will provide a very useful and cost-effective blueprint for the distribution of property, not only providing a welcome level of certainty, but hopefully saving everyone a lot of financial and emotional cost in ongoing litigation. In short, provided it's done right, a prenuptial agreement is legally binding, and can be a very good thing.

Superannuation funds are held in trust, and therefore they can’t generally be attacked by creditors, even a bankruptcy situation. But that doesn’t mean they are unassailable. Many of my Family Law clients facing matrimonial property settlements wrongly assume their superannuation is locked away and can’t be carved up as part of the property settlement. I’m afraid it’s just not true. In the event of a relationship breakdown, all assets owned by both parties, including money held in super, must be identified and valued as part of the joint property pool, to be divided up between the parties, regardless of when it was acquired. For the purposes of a property settlement, spouses have the option of taking their respective superannuation entitlements into account in the property settlement, by leaving them untouched and accounting to their spouse for their value from other assets, or alternatively by splitting the superannuation interest via a ‘payment split’. The most appropriate option will depend on the particular circumstances of each case. If it is convenient to make use of a payment split to effect property settlement then the superannuation of one spouse will be split so as to transfer part of that spouse’s superannuation into a superannuation fund in the name of the other spouse. Before assessing whether or not you will be required to share your superannuation with your spouse for the purposes of a property settlement, it is essential to identify the nature and type of the superannuation interest you have, and its value. Once this is done, you are able to examine the effect of any proposed settlement and the likely consequences of any superannuation split, and decide whether or not it is in your best interest to make a payment split.

Mediation is the process where a mediator, usually an experienced family lawyer, barrister or former Judge, assists people in dispute to negotiate a mutually satisfactory resolution to avoid Court. It is highly encouraged that parties to a dispute, resolve their case outside of Courts. Not only is going to Court extremely expensive, it also is a very long and stressful process.

If you are able to reach an agreement with your former spouse regarding the care arrangements for your children, you have two options available to formalise it, that is, by way of a Parenting Plan or obtaining Consent Orders approved by the Court.

A Parenting Plan is a written agreement which outlines parenting arrangements for children. The plan can be varied between the parents at any time. However is not a legally enforceable document. So there is no protection if the plan is not complied with by one of the parents.

A Consent Order is a written agreement approved by the Court and it may cover parenting arrangements for children as well as financial arrangements such as property and maintenance. Consent Orders are enforceable and there are consequences if not complied with.

Unfortunately not all parents are able to agree upon any form of care arrangement for their children. Depending on the circumstances of the case, the stress and tension involved in making this decision may affect the children and may make the process even more difficult.

If you are unable to reach an agreement with your former spouse, then you are required to attend Family Dispute Resolution to try and resolve the matter before going to Court. Unless you are to show that you are exempt from attending Family Dispute Resolution in circumstances where: (1) your matter is urgent, or (2) one of the parties are unable to participate effectively or (3) there are reasonable grounds to believe that there has been or there is a risk of family violence and/or child abuse.