In my 13 years of being a family lawyer, I’ve talked to a lot of clients about having a prenup with their spouse or partner. Prenups (or as they are known in Australia, Binding Financial Agreements) are a way to set out what happens to your assets and finances in the event that you separate.
Over the years, I’ve repeatedly recommended that clients have a conversation with their partner sooner rather than later, and before moving in together. Better to find out at the start of the relationship if you are both on the same page in terms of what you think is fair. But for some, it is easier said than done. Discussing the details of what might happen if you separate is a conversation that can be hard to raise with your partner, and definitely not romantic.
For me, I have taken my own advice and signed a prenup with my fiancé well in advance of our wedding. I was fortunate enough to have a partner who raised the topic of a prenup with me early on. Having been through a divorce before, Travis knew that separation is stressful enough without having to worry about what might happen financially. The thought of ending up in court, and having someone else make decisions about our lives and our future was something we both wanted to avoid.
For Travis and I, it was important to both of us to have an honest conversation about what we thought was “fair”. In the same way that we talked about finances during our relationship, it was important for us to know what we each thought would be the right arrangement if we were to separate.
I came into the relationship with assets and superannuation that I had worked hard to build in the years since I graduated from university. I am also a director of a law firm, which means I had my fellow business partners to consider. For me, I wanted the piece of mind that if Travis and I were to separate in the future, the process financially would be straight forward, not result in me having to sell my home, involve my business partners in a separation or end up in court.
Another important topic that we discussed and included our agreement was in relation to our pets. When we first bought our puppies Sammy and Frankie, we got them together as brother and sister so they could grow up together and keep each other company. We wanted to make sure that no matter what happened in the future, they would not be separated. We had this discussion before we bought them and agreed that if we separated they would stay with me. As pets are treated as property, they could be part of the agreement, but we couldn’t provide for any sort of pet custody arrangement. Instead, they will stay will me and Travis trusts that I would let him be part of their lives if we separate.
actually shows a lot more trust, because you absolutely expose what it is that both of you have coming into it.""]
Entering into one of these agreements takes a degree of trust from both sides. We both trust that the other will abide by the agreement if we separate, and keep our word not to go to court. We also haven’t gone into detail about things like specific items of furniture, or who would keep the chickens, but we trust each other to be able to agree about how to divide those things if we separate.
Over the years, having seen many people find themselves in court, and go through the pain and expense of the family law system, it is something I wanted to avoid. Having to share intimate details of your lives and your relationship with your lawyers, experts and the judge can be confronting, embarrassing and painful. Breakups are hard enough, without having to go over everything in detail over and over again, sometimes for months or even years.
Is talking about prenups with your partner a joyful topic? No. But not all discussions in a relationship are romantic or easy. Travis and I have also talked about the other what-ifs of life. What happens if one of us is in an accident? What do we each think about organ donation? What do we want for our funerals? Not things we really want to think about, or talk about, but conversations we need to have.
No one starts a relationship thinking they will end up in court, but the reality is that is what happens for some. I try to encourage clients to stay out of the court system, but some are left with no other option. The cost of that process financially and emotionally can be immense. A prenup is a way to avoid the court process, and keep your separation private. It allows you to retain control of the process and the outcome rather than handing it over to someone else.
Now that our agreement is signed, we can focus on planning our wedding and our lives together and hoping we never need to use our prenup.
