A binding pre-nup costs time and money/ $5500 fixed fee. Don’t risk a cheap prenup. It may cost you $$$$$$$ in the long run if it can be overturned. More and more couples who are marrying or commencing to live together are wanting to have a pre-nuptial agreement to protect any assets they had before commencing living together or getting married.
WHY? there is an increase in parents and family members helping young couples with loans, guarantees or gifts because property prices are so high and the property market is hard for a young couple to get into. The Family Court has traditionally treated loans from family members with scepticism, often dividing the property between both parties even though the parents only contributed the money to help their daughter or son.
The leading case on this is:
Biltoft and Biltoft  FamCA 45; (1995) FLC 92-614, the Full Court said , “the Court has indicated that it may properly determine not to take into account or to discount the value of an unsecured liability in certain circumstances. Such liabilities would include but are not limited to a liability which is vague or uncertain, if it is unlikely to be enforced or if it was unreasonably incurred.”
A Pre-Nup is one way to deal with the assets as if they were just for the benefit of one party, and not enrich the spouse in the event of divorce.
Pre Nups are very difficult to draft in order to achieve the right outcome. A cheap/ rushed or do it yourself pre-nuptial agreement may be overturned more easily than a financial agreement where all precautions have been taken and all necessary documentation has been carefully done. This costs money. But it may be a good investment for peace of mind of the couple and their families.