Question: Do I need a prenuptial agreement before I get married?
Answer: For people who qualify as spouses under the Family Law Act because they are married or have cohabitated in a marriage like relationship upon separation there is a presumption that each party will have a 50% interest in all family property in the name of the other party and in their name. This is subject to a Family Law Agreement to the contrary.
A Family Law Agreement is an agreement between two people who are about to enter into a marriage like relationship where they anticipate becoming spouses or have acquired, for the purpose of dividing assets or pensions under the Family Law Act, the status of spouses which agreement these two people wish to be determinative of the division of their assets and debts. upon separation instead of the provisions of the Family Law Act. These agreements can also determine, if the parties wish it, how spousal support will be determined or whether or not a spouse can apply for support. The agreement is signed by both spouses and at least one party witnessing their signature. It is almost always better to have an agreement if you are contemplating living with another person to establish what will occur if your relationship does not work out. In this way you can ensure certainty and avoid costly litigation when a relationship ends. Under the new Family Law Act agreements are encouraged more than ever before and if properly negotiated and drafted will almost always be upheld by the court. They are now definitely the way to go if possible.
Historically if these agreements were entered into prior to the commencement of a relationship they were referred to as pre-nuptial or ante-nuptial agreements and if they arose during cohabitation they were referred to as cohabitation agreements. If they occurred after separation they were referred to as separation agreements. These distinctions and names are not any longer that important under the new act because all such agreements which are in writing and witnessed by at least one person and finally divide assets between spouses or potential spouses are defined to be Family Law Agreements.