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SHE LOVES ME, HE LOVES ME NOT
February 2001


What's it about?

The guests would always remember it as a picture postcard. There they were, framed by the willow trees and the rough hewn stones of the church, the wedding couple apparently destined to live happily ever after in their perfect bliss.

Fast forward two years. Tears, recriminations, pointed fingers and furrowed brows. Who would have thought it would come to this, certainly not the Golden Couple who had locked eyes all the way down the aisle. In passing, a friend had mentioned future asset protection, a notion they had passed off as though it was a practical joke. Now there will be a lingering mess. He paid the deposit on the house; she made most of the mortgage payments. And then there is the timeshare on the Sunshine Coast, the part-ownership of the chalet in the snow, the money borrowed from her father's trust account. At night they lie awake in their separate beds, wondering how they could have been so naïve.

Should they have signed a prenuptial agreement?

What's a prenup?

The Family Law Amendment Act is yet another reform to the Family Law Act of 1975. The Act permits couples to make legally binding agreements that deal with certain financial aspects of the relationship, before or during the marriage and after separation. The tenor of the legislation continues this Government's focus on policies that will, on the one hand, prevent marriage breakdowns, and on the other hand provide couples with the means to control their own affairs (so to speak!).

Couples can already do this, but they have been subject to greater scrutiny by the courts. Now they can determine their own financial destinies in the event of a marriage breakdown, and in general the courts will not interfere. To safeguard their rights, each partner will be required to get legal advice to ensure that the agreement is fair and to each partner's advantage.

These agreements are commonly known as "prenuptial agreements', or as they say in America and the pages of our favourite tabloids, a "prenup". And if made after the marriage we might call them a "postnup".

The price of love

We can hear the groans from out there in cyberspace. What is this, a reform or another signpost on the road to marital oblivion? Why are you lawyers always looking for ways to derail relationships? Why don't the courts use their powers to persuade couples to stay together rather than helping them to move apart? Does a prenup mean the couple don't love each other? Are we facing the abyss?

Perhaps the critics are right, a prenup is the cold shower that cools the passions before marriage, but perhaps that's the way it should be. After all, there is plenty of empirical evidence to suggest that nearly one in two marriages will fail anyway, so isn't it better to be prepared? And why are couples scared to discuss a potential future breakdown of the relationship? Sometimes it has less to do with naïveté or a conviction that the marriage will survive all obstacles, and is more an indication that there are other issues that have also not been discussed, or that the mutual expectations of the couples are not clearly understood. And where expectations are not revealed there will often be the likelihood that resentment and anger will settle over the relationship.

Second time around

Statistics tell us that many divorced couples are not twice shy, in fact most of them survive their divorce and marry again. This is where a prenup can be crucial. By this time the bloom of first love has faded - let's be honest, by now we are instead jaded. More importantly, partners in second marriages are usually in their later thirties and forties, by which time they have accumulated some assets and enough cynicism to want to hold onto them. Not to mention the children they need to provide for.

"Sign here, darling"

So how would you feel when presented with the prenup? Would you be prepared to see it for what it is, a method of planning little different than a will or a power of attorney, or would it set your teeth on edge? This is another example of the great divide between legal theory and practice. Listen to your lawyer and you would have everything in writing, see every accident as an opportunity for litigation and every broken step a potential claim for negligence. But your lawyer is not your spiritual advisor, let alone a confidant or friend. In the next few months you will read many entreaties to sign one of these agreements, accompanied by lucid and undoubtedly sensible arguments about the virtues of forward planning.

And they're right, of course. It's just that lawyers and legal commentators have little to say about character, or our feelings about our loved ones, or even the way we define ourselves. Are you the sort of person who can look at a prenup and not feel threatened by the circumstances it contemplates? Are you so secure in your relationship that you do not fear courtly words on a legally binding document? If so, go for it, because it may save you much anxiety down the track.

But what if you see a prenup as a caveat that will hang over your marriage like a cloud? What of those of us who are not sufficiently secure to ignore those nagging doubts that assault us in the wee hours? For this group it might be entirely proper to ignore the push for rational planning. But more importantly, lawyers will have to find ways to assure this group that it is really in their best interests, and not just in the interests of further work for the legal profession, to see these agreements as objectively prudent planning for the future.

And for those die-hard romantics who choose to look only on the bright side of the marriage road? To you we say good luck, and may you never see the inside of a family lawyer's office.

By Geoffrey Winn
Creative Director
www.law4u.com.au

Read this: The legal information contained above is intended to be general information about the law. It is not a substitute for legal and other professional advice. Lawscape Communications P/L does not accept responsibility for loss to any person, who either acts or does not act because of this information.

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