When you enter into a marriage or a relationship, the thought of divorce or separation can seem unfathomable. However, the sad reality is that 1 in 3 marriages ends in divorce or separation. So, while it may feel unpalatable to think about, it’s very common and practical to consider protecting your assets and/or how you will divide joint assets in case the worst should happen.
While conversations of this nature can be difficult to broach, prenups and Financial Agreements are becoming less and less taboo in today’s culture and climate.
In this post, we’ll outline some practical strategies as to how you can approach the situation with your partner, in what can sometimes start out as an awkward conversation.
Be clear and straightforward
Asking for a prenup can be a sensitive issue and needs to be handled delicately. Even though you may not want to open the conversation with something as blunt as “I want a prenup”, you should get to the point relatively early in the conversation, and communicate your intentions and objectives as soon as possible. This will help to lay the foundations for open and honest dialogue
Be prepared to answer questions such as why you want to enter into a prenup and what you are trying to achieve in doing so. Maybe you have been through a separation before and want to have peace of mind as to what will happen to your assets if you separate with your new partner. Maybe you have assets that have been in your family for generations that you and your extended family wish to protect. Or maybe a prenup is part of your estate plan.
Whatever the reason, be as clear and honest with your partner about your intentions.
Timing is everything
When you mention the fact that you’d like a prenup can make a big difference to your partner’s reaction as well as to the tone of the conversation. For example, if you’re both already in the middle of an argument, then it’s only likely to become a further point of contention. Or, if you’re both ready for bed, you may be to be too tired and irritable for the discussion.
Be sensitive to your partner and consider raising the subject with them in private.. If you mention it in the presence of your own family and friends, for example, then your partner may feel like they are being ‘ganged up on ’.
Ideally, you should both be in a positive frame of mind and have plenty of time to discuss the matter, as this will give you both the mental capacity and the scope for discussion required to tackle the conversation in an adult way.
It is also important that the conversations and/or the timing of the agreement is far enough away from your intended wedding date or other related events. This is because agreements can be set aside if one party feels that they were pressured or placed under duress to enter into the agreement.
As a precaution, these conversations and the signing of the actual prenuptial agreement should happen well in advance of any wedding invitations being sent and/or any major wedding related events taking place.
Reassure your partner
One of the benefits of a prenup, is that both people can benefit from asset protection and/or be provided with reassurance with respect to future financial support.
For example, if your partner is going to give up work (e.g. to have children) or his/her income is going to be negatively impacted in some way due to the circumstances of your relationship, a prenuptial agreement can provide for how that person is going to be supported by the other in the event of separation.
This should be highlighted to them and reinforced as much as possible. Although a prenup is often first mentioned by one party, the final arrangement can be mutually beneficial.
You should also stress that, if the worst happens , the prenup can save you a lot of time and money while also allowing you to make your own decisions as a couple, rather than having a court decide who keeps what.
Listen to their thoughts and opinions
After you tell your partner of your desire to have a prenup, it’s likely that they’ll have a number of questions not only about why you/they should enter into a prenup, but what terms are important for them to have included in the agreement.
In order for a prenup to be binding in Australia, there are strict requirements that must be met under the legislation. One requirement is that each party to the agreement must obtain their own independent legal advice.
Encouraging your partner to go to a lawyer early on in the piece will reassure them that the agreement is not going to be one sided and that they too will have input into the agreement to ensure their current assets and/or future financial assets/interests are protected.
Be prepared to pause
If your partner had never considered a prenup as an option prior to you raising it, then they may initially reject your proposal. To many people, there is no room in romantic relationships for business like decisions. However, the reality is that all relationships have a ‘business side’ to them such as reviewing expenses, making budgets and making plans to acquire assets.
If these ‘business decisions’ or roles are not clearly defined or discussed from the beginning, you could be setting yourself up for failure. It is important to be on the same page with your partner about your expectations and/or how these decisions will be made, and a prenup can provide for this.
At some point during your discussions, you and your partner may disagree about what terms should or should not be included in the agreement. It is important to give yourselves plenty of time and space to think about these issues. Pause discussions and reflect on your discussions as much as needed. Then, at a mutually agreeable time, come back and start the conversation again. No matter what stage of your relationship you’re at, conversations about finances and future financial arrangements can be difficult. However, keep in mind that you’re hopefully discussing something you’ll never need to use. That being said, with a prenup in place, you’ll both always know you’re protected in case the unthinkable happens.
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