In the Sun Herald on Sunday, 9 February 2014, there was yet another article which warned of the risks for people contemplating entering a Financial Agreement before marriage (or a “pre-nup” as they are commonly known). Cosima Marriner spoke to a number of experienced family lawyers who expressed their own reluctance to draft “pre-nups” for women embarking upon a marriage or relationship where they might have children and were the financially weaker party as the document would likely see them disadvantaged.
While “pre-nups” can create certainty for couples who wish to exclude the operation of the Family Law Act in the event their relationship was to end, each lawyer advising their client about the advantages or otherwise for their client in entering into the agreement has to make careful assessments of risk. This is made more difficult when the parties are young and it is possible or expected that the couple will have children. The change of circumstances arising as a result of the birth of children is one of the grounds which can be relied upon to argue that a “pre-nup” should be set aside. Either party may feel vulnerable to future uncertainty and risk in that event and many lawyers are refusing to be engaged to draft these sorts of agreements given these risks. If a party faces a challenge, even years later, to the validity of an agreement, the lawyers who drafted and advised on the terms of the agreement will be drawn into the dispute.
The debate reminds us though that while many would prefer to avoid the process of “fighting for” an outcome in the Courts, the application of the Family Law Act 1975 still affords the fairest and clearest protection to those couples who, having forged a life together, can no longer agree on what to do when they have separated. And while women still earn less than men, still take more time out of their working lives to care for children and aged parents and still accumulate significantly less superannuation than men, the protections of the Family Law Act go some way to shielding against the worst expressions of that disadvantage.
Di Simpson is a Partner at Dobinson Davey Clifford Simpson Family Law Specialists, 18 Kendall Lane, NewActon, Canberra ACT 2601 and can be contacted on (02) 6212 7600.