| Pre‑nuptial
agreements, known as 'binding financial agreements', became
enforceable in Australia in 2000 with the enactment of the Family
Law Amendment Act 2000.
The pressure to allow
binding pre‑nuptial agreements resulted from the major societal
changes that had occurred in Australia, as in England, during the
prior 30 years, such as changing views about marriage, higher rates
of marriage breakdown, falling marriage rates, increasing
cohabitation in marriage-like relationships and higher rates of
second and subsequent marriages. Those pressures had intensified as
cohabiting couples in Australia were permitted greater freedom of
contract than married couples: ‘This created the extraordinary
anomaly that the rights of married couples with respect to
self-regulation of their financial affairs were significantly less
than those of cohabiting couples'. When he introduced the
legislation the Attorney General of Australia stated: ‘The changes
in this Bill will attempt to bring the Act into line with prevailing
community attitudes and needs'.
Part VIIIA of the Family
Law Act 1986 requires that the parties secure independent legal
advice and permits courts to refuse to enforce agreements on the
grounds of fraud, duress, mistake, undue influence or
unconscionability, as well as if it is impracticable for all or part
of the agreement to be carried out, or if there has been a material
change in the care of a child leading to hardship.
In 2004 the Family Law
Council, an Australian governmental agency, reported that the rules
are working well, allow people greater control and choice over their
own affairs in the event of marital breakdown and contain
appropriate checks and balances. |
