Pre-Nup/Financial Agreement

[evea8571]

Hi All,

I have been married for 5 years and I had a house before I met my wife. I have a 25-year mortgage on it and when we met, I was already 15 years in. For the past 5 years I have made the sole contributions to it – I kept her out of it on purpose I was advised that if she had made any contributions to it, she would have a better claim in the event of a divorce. It’s important to note that we bought a house together and have made 50/50 contributions to it – so it is not like she is paying for one and me the other – I am paying 50% the house we have together and 100% for my previous house.

We have had some issues in the last and have considered divorce. Things are going fine now but it is always in the back on my mind that I need to protect myself if things don’t work out.

I am considering selling it, to help finance our new house. Obviously though I want to protect these assets as much as I can in, we separate in the future. If she agrees to it, can I get something written up legally (and she signs) which says something along the lines of:

[ME] agrees to sell the house in my name and the profits/money made from the house will be re-invested into [OUR] new house. But [SHE] concedes all claims to any monetary claims on this house in the event of a separation.

Something to that affect and will it hold up in court if the worst happens? Essentially, I want her to say she has no claim to it at all and if we were to separate, I would like it to be legally enforced that this money would go straight to me and is left OUT of the asset pool when the financial settlement is considered.

Thanks in advance

 

[Tim W]

You're asking about a thing called (in Australia) a Binding Financial Agreement.
These are not DIY.
Both parties will need formal case specific legal advice to make one that has effect.

1. This bit:

I was advised that if she had made any contributions to it, she would have a better claim in the event of a divorce...

Advised by whom?

2. The Court can (and frequently does) will strike down any BFA that it thinks is unfair.

3. Any way you angle it, as soon as you bring this up, your marriage is over. Are you prepared for this aspect?

 

[evea8571]

Advised by whom?
Someone in the UK when I was. Yes, I know, it is not the case... which is why I am coming at this angle.

Any way you angle it, as soon as you bring this up, your marriage is over. Are you prepared for this aspect?
Well not really because we have already spoke about these things in the past and argued over them. She's asked me to sell it in the past and I've said no. I am not just going throw away 20 years of hard graft cause it might "upset" her. If she disagrees to it I wouldn't want to be with her anyway - I'd never try to take anything from someone which I did contribute to, let alone 20 years of savings...

I know the forum is not a DIY form and I'd need a lawyer to draft it. I was just asking if it is legally doable and worth persueing.

In your opinion, do you think the court would see this as unfair? I do not see how the court could come to this decision considering she hasn't contributed a bean, and I had it 15 years before I met her, and I have contributed to our house equally. If she was paying for our house solely, and I was paying for my house solely it would be unfair for me to do this and I wouldn't even attempt it.

 

[SRL1]

What you are trying to do might have worked if the BFA was done at the start of the marriage.

Since you have been already married for 5 years, courts would treat the house in your name (and any proceeds you get by selling it) as a "matrimonial asset" that belongs to both parties. Therefore, any attempt to isolate it from the asset pool is likely to be deemed unfair. However, you might get an adjustment in your favour for the money you contributed to it prior to the marriage, so all is not lost.

If you really want a BFA for peace of mind (despite the risk to the relationship), a better approach would be to draw up one that stipulates how the entire asset pool will be divided in the event of separation (instead of one that focus on a single asset).

 

[sammy01]

My advice - do nothing. So in the family law act there are provisions for the duration of a marriage. 5 yrs isn't long. 30 yrs is. So what your brought into the relationship, if you broke up tomorrow - would be factored into any asset division. REad the link especially the bit about 'taking stock at the start of a relationship".
So you should expect a good outcome if she was to fight tooth and nail in court. But let's try to avoid that.
What about a BFA? sure, can do, worth you looking into. BUT they're not water tight. So if things go really bad, she can still challenge the BFA in court, especially if separation were to happen in 10-15-20 yrs. THe older a bfa is the less watertight. And if you have a kid for example, then the thing is leaking like the titanic.