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Family Matters No. 53 - June 1999

Binding pre-marital agreements

Will they help?
Belinda Fehlberg and Bruce Smyth

Abstract

In Australia, unlike most other countries, premarital agreements, or financial agreements entered into before marriage, are not legally effective on divorce. Couples cannot enter binding agreements about their financial affairs until after their marriage has broken down. The Federal Government proposes to change this situation. In this article the authors question whether binding agreements will help divorcing couples. Recent data from the Institute's Australian Divorce Transitions Project sheds some light on this important question. After briefly outlining the current legal position and policy issues, the findings from these data are presented, and then considered in the context of current proposals for reform.

In Australia, unlike most other countries, premarital agreements, or financial agreements entered into before marriage, are not legally effective on divorce. Couples cannot enter binding agreements about their financial affairs until after their marriage has broken down. The Federal Government proposes to change this situation. In this article the authors question whether binding agreements will help divorcing couples. Recent data from the Institute's Australian Divorce Transitions Project sheds some light on this important question. After briefly outlining the current legal position and policy issues, the findings from these data are presented, and then considered in the context of current proposals for reform.

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