If you are an Australian who will be getting married in Thailand and are considering a prenuptial agreement then consider the following benefits of a prenuptial agreement in Thailand that will also be binding in Australia. As explained you need to register a prenuptial with your marriage registration in Thailand and not afterwards.
Prenuptial agreements in Australia are not as common as in the US and are known as ‘binding financial agreements’ in Australia. The Family Law Amendment Act 2000 made the prenuptial agreements easier to enforce. The Family Law Act 1986 which it amended made provisions under Australian law. The prenuptial agreement is not enforceable under the following situations which have also been explained elsewhere on this website (See: Common Errors with Prenuptials Agreements). The Australian law make specific references to the following:
- Each party had access to independent council before signing the agreement;
- That the assets had been identified correctly without any fraud;
- That no duress was used by either party to the agreement;
- That there was no mistake in understanding what was signed by the parties;
- There was no undue influence from either party to sign the agreement;
- That the agreements signed is not of an impracticable nature.
Prenuptial Agreements in Australia
These have also been listed before as some of the most common mistakes when drafting a prenuptial agreement. As stated that the most common defense during a divorce is for one of the parties to state that they did not know what they had signed and did not have independent council before signing the agreement. The questions which are normally raised is do you have proof that she understood what was signed and again this comes down to have a letter from an independent law firm not associated with the one that drafted the agreement to explain that they had explained to her what she was signing and the conditions and ramifications of signing the agreement.
The Family Law Council of Australia in 2004 stated that the enforcement of the prenuptial agreements in Australia had become easier and that the law has made a good impact on the legal system by allowing people to have more control of their lives after their marriages have broken down and a divorce was the only solution.
Note that if you have a business in Australia and you do not have a prenuptial agreement your Thai wife might become the partner of your business displacing you. Would this prenuptial agreement not be a good investment for the business by not only shielding your assets but also ensuring that the business and your business partners are not damaged by your divorce?
Consider your options before marriage and speak to an attorney in Thailand for advice and guidance with regard to property, assets in Thailand and Australia and how best to protect it. Best if you are considering a prenuptial agreement to have the attorney register the marriage and the prenuptial at the same time in Thailand.