Do you need a Contracting Out Agreement?
If you and your spouse/partner are moving in together, it is important to think about whether there is any property you would like to protect. If you do have property you want to protect, a contracting out agreement is essential. It is important to remember, even if property is owned by a trust or was owned by you prior to the relationship, that does not necessarily mean the property is protected. There are situations where a spouse/partner can access this property in the absence of a contracting out agreement.
The process in executing a contracting out agreement requires both you and your spouse/partner to each have your own lawyers who will need to obtain valuation evidence as to the value of each asset and liability being dealt with in the contracting out agreement. Once that information is obtained, we will then be able to provide you with the required level of advice and execute the agreement (if appropriate) from there.
In most cases where there is agreement between the parties and in the absence of any complicating factors such as trusts or complex business structures, we are able to prepare and complete a contracting out agreement (prenuptial agreement) for legal fees of less than $2,000 (plus GST and disbursements). At the time of our initial consultation we will often be in a position to provide an indication as to the costs that we believe are likely to be involved in reaching such an agreement.
Frequently Asked Questions
"Pre-nuptial" or contracting out agreements have become more popular since changes to the Property (Relationships) Act were made. Under this Act there is a general presumption there will be equal sharing of relationship property once the relationship has been in existence for three years or more as at separation. Under the Property (Relationships) Act the family home, furniture and chattels are relationship property regardless of when they were purchased and by whom. This can have serious financial implications where one party owns the family home prior to the relationship. Many people believe that if they transfer the family home into a Trust during a relationship then this will not be included in the relationship property pool. This is not correct. For a modest cost a contracting out agreement can prevent you from losing many thousands of dollars on separation.
The Property (Relationships) Act specifies that in order for a relationship property agreement to be binding it must be in writing, both parties must sign the agreement after having received independent legal advice and their lawyers must certify the agreement stating that they have advised their client as to the effects and implications of the agreement.
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