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DIVORCE CANBERRA – changes to prenups to bring certainty

Holes fixed in prenup legislation.  Nicola Berkovic writes in the Australian on May 1st:

Couples will soon be able to enter into prenuptial agreements to cover themselves in the event their marriage sours, with the government releasing ­proposed changes to fix legal ­uncertainties.

Family lawyers had all but stopped drawing up “prenups’’ for fear of getting sued by clients because of problems in the law.

Attorney-General George Brandis released draft legislative changes yesterday to fix those uncertainties relating to binding financial agreements. Senator Brandis said the changes to the Family Law Act would clarify the rules for entering, interpreting and enforcing the agreements.

“The aim of the proposed amendments is to ensure that prospective, current or former parties to a marriage or de facto relationship can take responsibility for resolving their financial and maintenance matters without involving a court,” he said.

After a 2009 Family Court decis­ion cast doubt on the validity of tens of thousands of prenups, the government passed retrospective legislation to ensure the agreements would not be set aside because of minor technical errors. But those changes did not fix the problem and meant more uncertainty.

The Law Council of Australia’s family law section has written to the government many times over many years, urging it to fix the problem.

Barkus Doolan Family Lawyers partner Paul Doolan yesterday welcomed the legal review.

“Prenups should enable parties to plan their own outcomes if the marriage or relationship breaks down, but the current state of the law clouds them in uncertainty,” he said.

“This review will be warmly welcomed by both the legal profession and the community.”

In one famed case, Wallace and Stelzer, a multi-millionaire businessman challenged a prenup in which he agreed to pay his second wife, a former Sydney strip-club dancer, $3.25 million if their marriage failed.

Although that deal was challenged unsuccessfully by the businessman, lawyers say there have been significant differences between judges as to how the laws and agreements have been interpreted, causing substantial risks for lawyers and their clients.

In some cases, the agreements have been set aside because a solicitor did not provide their client with proper advice


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