Will a Thai prenuptial be recognized in Australia?

Prenuptial agreements in Australia are referred to by Australian legislation as “binding financial agreements” rather than prenuptials in Thai law. Financial agreements have been introduced into Australian law relatively recently comparative to other Australian family law legislation, through Part 90 of the Family Law Act in 2000. This sets out the various conditions under which a binding financial agreement will be valid, all of which must be satisfied for a court to consider it binding.

A binding financial agreement can cover the following issues pursuant to s90B(2):

(2) The matters referred to in paragraph (1)(a) are the following:

• (a) how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of them at the time when the agreement is made, or at a later time and before the dissolution of the marriage, is to be dealt with;
• (b) the maintenance of either of them:
• (i) during the marriage; or
• (ii) after the dissolution of the marriage; or
• (iii) both during, and after the dissolution of, the marriage.

According to the aforementioned Act, a financial agreement can be entered into prior to, during or after the dissolution of marriage. The Act also outlines the following various conditions which must all be fulfilled for the agreement to be considered binding pursuant to s90G:

• Agreement must be signed by both parties.
• Before signing, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages at the time the advice was provided to the party making that agreement.
• The agreement must contain a certificate which states that the person providing the independent legal advice was provided pursuant to the above paragraph.
• The agreement has not been terminated and has not been set aside by a court.
• After the agreement is signed, the original agreement is given to one of the parties; and a copy is given to the other or the other’s legal practitioner.

How can a binding financial agreement (prenuptial) be terminated?

A financial agreement can be terminated by the parties in two ways, firstly; if the agreement contains a provision which allows such termination, provided it is properly incorporated as per the above conditions. Secondly, a written agreement, called a termination agreement can be made, which must again fulfill the aforementioned conditions that also apply to create financial agreements.

Furthermore, Australian courts can make an order setting aside a financial agreement or termination agreement if the court is satisfied with the following pursuant to s90K:

• The agreement was obtained by fraud, for example, the non-disclosure of a material issue.
• Either party was entered into for the purpose of defrauding or defeating a creditor or creditors of the party.
• If the agreement is void, voidable or unenforceable.
• If circumstances have arisen which make it impracticable for the agreement to be carried out.
• If, since making the agreement, a material change in circumstances occurs this would result in one party suffering hardship if it is not set aside.
• When making the agreement, a party engaged in unconscionable conduct.

Both parties must also fully disclose all of their assets, and failure to do so could result in the agreement being set aside by a court.

Will financial agreements (prenuptial) made in foreign jurisdictions be recognized in Australia?

Australian case law would indicate that agreements made by lawyers who are not admitted to practice in Australia will not be binding. In 2009, two cases concerning this arose. In one case Ruane v Buchmann-Ruane, an English lawyer drafted a financial agreement that was found to not be binding because they were not licensed to practice law in Australia and had no knowledge of Australian law. In the same year in Murphy v Murphy, a lawyer in the Philippines who was not licensed to practice in Australia made an agreement on behalf of a client which was similarly found to be not binding by the Court. The judgment in Murphy and Murphy indicated that the agreement was not binding because the legislation requires a ‘legal practitioner’ to give independent advice, and accordingly a legal practitioner must be entitled to practice in Australia for the agreement to be binding. However, it may be possible in the future that Australian courts will recognize the evolving international nature of family law and recognize prenuptial made by overseas practitioners provided they conform to the other conditions prescribed in s90G of the Family Law Act.

See also Prenuptial Agreement in Thailand.

 

Tags: Divorce in Thailand, family law, Marriage Registration, Prenuptial Agreement, Prenuptial Agreements in Australia, Thailand Marriage

Category: Divorce, Family Law, Marriage, Prenuptial Agreement