Sign before tying the knot

Catchwords: Family law, prenuptial agreement, financial agreeement, open and honest protection of asset handed down, save legal costs.

Can a farmer wanting to get married protect the farm from being sold by way of pre-nuptial agreement, in the event that the marriage breaks down? The short answer is yes, you can try. However, whilst they are bnot iron clad and in some cases prenuptial agreements may be unenforceable, you may want to have one for several reasons.

You may feel there is a certain stigma attached to raising this sort of issue just before marriage. After all, the marriage might never happen if the subject is not handled with mutual care and compassion. However, the high percentage of breakdown in marriages, the extended litigation concerning property adjustment and the high level of legal costs which have to be paid out of the property of both parties, would all be good reasons to talk about a pre-nuptial agreement.

After all, if the marriage does break down, and you find yourself in Court, both parties will end up paying legal costs and diminishing their wealth.

Pre-nuptial agreements try to take away the power of the Court to adjust certain property under the Family Law Act. The Court can intervene and make orders over any ‘quarantined’ property if there was fraud, duress, or undue influence or there was a lack of independent legal advice.

The parties to the proposed marriage are exercising their own freedom of choice in regulating their own affairs, rather than letting the Court system do it, in the event of a dispute.

What is the advantage of having a pre-nuptial agreement if it is not totally enforceable in all cases?

In marriage presently, a pre-nuptial agreement can attempt to deprive the Court of its jurisdiction to determine what is the appropriate property adjustment. However, if there is available evidence of exactly what the parties assets were at the marriage’s outset, and these assets were not fully disclosed in the prenup and the truth was blurred, the Court may be able to still intervene. This can also occur if the “financial agreement” was entered into without the appropriate independent legal advice and certificates were obtained by both parties’ lawyers.

Having this type of agreement encourages honest and open communication between both parties in a partnership for life. If one party has inherited a farm from prior generations, it would be perfectly honest and open to raise concerns about losing generations of toil. Making such an agreement allows both parties to take control of their lives and not the legal system. It allows for financial planning and security. If they are done properly, they can work well.

Jonathan de Vere Tyndall

Article updated 7 January 2015, originally published in The Land on 24 April 1999

Editors note: The articles published contain comment only and not legal advice, for which you should retain a solicitor. No responsibility is accepted for the accuracy of the contents.