Prenuptial Agreement
In everyday practice, friends often say to Lawyer Ren:
“My husband says he’ll love me for life, and even signed an agreement promising that if we ever divorce, everything will be mine.”
Similarly:
“We’ve already divorced. He said there’s no need to spend money on lawyers—just sign something privately between us.”
“No need to make it so complicated. Agreement templates are online; just download one, fill it out, and each keep a copy.”
…and so on.
I remember some years ago a friend met a “perfect” boyfriend who made her sign a document swearing he’d never cheat (“my little train will stay on track forever”), and that if he did cheat and they divorced, all his property would go to her and he’d walk away with nothing.
In the end, when they actually divorced, they still ended up in court—and that promise became worthless paper.
Faced with such flowery promises, Lawyer Ren can only shake his head and say they’re not reliable.
In Australia, a prenuptial agreement is the form that most closely approximates a notarized property agreement to protect both spouses.
Family Law imposes strict requirements on the format of a prenuptial agreement. The key points are:
- It must be drawn up in writing;
- It must state the legal provisions on which it relies;
- It generally must include a description of each party’s current assets;
- It must include certificates of independent legal advice from each party’s lawyer.
By the way, under Australian law there isn’t just a “prenuptial” agreement—these agreements can also be signed after marriage or after separation. To avoid confusion, they’re generally called “financial agreements.”
Typical prenuptial agreements set out detailed provisions on:
- How premarital assets will be divided on divorce;
- How assets acquired by each spouse during the marriage will be divided on divorce;
- Whether assets acquired during the marriage are separate property or jointly owned;
- How jointly owned assets will be divided on divorce.
In practice, Lawyer Ren has seen all kinds of unusual clauses—“loyalty-based” provisions that award more to the faithful spouse based on marriage length, and “care-based” provisions that grant compensation to whoever provided better care during the marriage. Although these clauses may raise moral questions, they are legal and valid as long as the agreement itself is properly executed.
Certificates of independent legal advice from both parties’ lawyers are a crucial element. A professional lawyer will explain each clause in detail—what rights you’re giving up, what obligations you’re taking on, and whether the terms are fair. Without those certificates, a financial agreement simply cannot take effect.
These legal requirements effectively render hasty promises void. Without the necessary formalities, most “hand-made” private agreements cannot be enforced.
If someone hands you a sweetly worded promise—perhaps sealed in a pretty wax envelope—Lawyer Ren’s advice is: take it to a trusted lawyer first.
Editor’s Note:
Mr Ren is originally from Guangzhou, China and has practised for many years. He is now the Principal Lawyer at LJR Legal.
Embracing modern technology, speaking the languages of our Chinese community, and serving as your dedicated legal advisor has been Mr Ren’s mission throughout his career.
As a full-service practitioner, in addition to his deep expertise in Family Law, Mr Ren also specialises in:
- Contract Law
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- …and many more.
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Disclaimer: This column provides general legal discussion only. The text, images, and any content herein do not constitute legal advice, nor does Mr Ren intend by this column to advise its readers. If you require advice tailored to your circumstances, please arrange a confidential one-on-one consultation with Mr Ren. Neither this column, the magazine, nor Mr Ren accepts liability for any loss arising from anyone’s use of its content.