SA Family Law is often contacted by couples who are about to be married for advice on the preparation of a “Prenuptial Agreement”. Usually, one or both spouses are seeking to protect assets accumulated prior to the marriage from claims made by the other spouse if the relationship breaks up. Many people have the impression that such agreements can only be entered into at or about the time of the marriage and refer to this agreement as a “Prenup” or “Prenuptial Agreement”. The correct term used in family law is “Binding Financial Agreement”. Such agreements may be prepared not only prior to the marriage but also during the marriage or after separation. It also similarly applies to de facto relationships.

Who and when can a Binding Financial Agreement be entered into?

The law allows married couples, de facto couples, soon to be married couples and parties about to enter into a de facto relationship to enter into a binding legal agreement about their financial arrangements should their marriage or de facto relationship break down. Hence, such agreements can be entered into by parties:-

• contemplating marriage or entering into a de facto relationship;
• during a marriage or de facto relationship; or
• upon separation of a marriage or de facto relationship.

It is also available to same sex couples.

The purpose of a Binding Financial Agreement is to:-

• preserve and protect assets from property claims made by the other spouse should the relationship break down and also to avoid claims by the other spouse for spousal maintenance after separation; and
• bring certainty in financial matters should the relationship break down as the parties would know what assets and financial support each would be entitled to upon separation.