Forums / Property Investing / Help Needed! / Pre Nups .. do they protect us ?

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  • Profile photo of PsychiatristPsychiatrist
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    @psychiatrist
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    Helloo..

    My Q is, Do pre-nups for RE hold up?

    Profile photo of fernfurnfernfurn
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    @fernfurn
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    I have a girlfriend who has had a livein boyfriend for 15-18 yrs. She used to make him contribute to the household expenses each week and issue him with a receipt. (Yes, officer, he’s always only been a boarder) He had no money, she had squillions. She would offer him to go in with her in investments and whatever he could put him would be called a % of the total and official paperwork set up as a business partner for only that % of the profit. (Yes, officer, he’s always only been a business partner). Interesting way to live?

    Fern

    Profile photo of calvin_thirty4calvin_thirty4
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    Dutchess,
    I believe that Pre-nups are not water tight in Australia. things may have changed in the last few years, though.

    Best way to protect your asstes from “freeloaders” (I have thougth about this myself – have seen a friends sister taken to the cleaners after 8 months of defacto relationship. Uuu-glyyyy!) is to put assets into a Trust. What kind of Trust? – please do a search because there are myriads of posts on pros & cons, colours & shapes, etc all about trusts.

    Problem for you might be that, because you already own a house, to transfer it to the Trust would cost you fees and Taxes.

    Trust me when I tell you that you are not alone when it comes to asset protection!

    Hope that helps some….

    Cheers
    [email protected]

    Our greatest weakness lies in giving up. The most certain way to succeed is to always try something one more time.
    – Thomas Edison

    Profile photo of grossrealisationgrossrealisation
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    hi dutchess
    any protection is good protection.
    may work or may not.
    you would need a trust and an accountant/solicitor to draw it up.
    you should draw up a binding financial agreement with a solicitor so if any thing does go wromg with any deals and for financial reasons a binding finacial agreement can in some cases keep the guys with the wigs off your personal items Ie your house

    here to help

    Profile photo of gatsbygatsby
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    Hi Duchess,
    I think the problem with prenups if taken to the full extent legally is that they may only be valid at the time they were written(?). If down the track assets, etc change then you may find the terms of the prenup may become invalid(?). I’ve heard that by giving your partner a receipt for rent paid may circumvent this. However, it kinda takes the committment/romance out of the relationship? Just my humble opinion.
    Kind regards,
    Gatsby.

    “Sometimes the hardest thing to do in life is often the best thing to do.”

    Profile photo of lifeXlifeX
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    @lifex
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    This area fascinates me.

    My understanding is that a defacto with no kids involved is dealt with in the state courts and each partner is only entitled to portion of assetts that they personally contributed to.

    Add kids to the equation,,,,,different story.

    If you are married (with or without kids, ) then it goes to the family courts where the custodian of the kids (usually wife) gets a very good percentage of the lot.

    I would have thought a legally executed document pre-nup or joint partner agreement would protect the assetts you originally brought to the table and everything after that would be divvied up.

    Can anyone add to this?


    Live, Learn and Grow

    Lifexperience

    Profile photo of munjymunjy
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    Dutchess,

    Anyway, I have talked to a solicitor about this, but it was at a pub and I’m sure she’d had a few drinks so not sure if this is totally true.

    Pre-nup (btw it’s called something else in Oz can’t remember -a financial agreement?) as others have suggested will protect what you bring to the marriage. After that it’s split according to the pre-nup. There is absolutely no way of protecting your assets from your spouse and to do so can cause all kinds of problems from the courts for trying to hide them. You must have full disclosure. And there are forensic accountants that can be hired! eek!

    If in defacto, you have to have everything recorded and make them pay rent, etc, so that it doesn’t look like financially you have a relationship.

    You could place your asset in a family member’s name, but that’s another kettle of fish. Not for everyone.

    I think that the answer to your problem Dutchess is to be interested in a richer man.

    Munjy

    PS I know someone who got divorced 2 times. He tells me that they even get a part of your super! Ouch.

    Profile photo of SidelinerSideliner
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    Hello Duchess
    I understand another way to protect yourself is to have your beau sign a lease and to pay ‘rent’. That way he is only ever a tenant.
    Suggest you could check it out with a lawyer that KNOWS about property and what it entails. A trust is an option, and true the transfer could mean capital gains and any other tax that the state you live in can throw at you. So it is possibly not an option as it is very costly.
    You could set up a trust through and have the Trust register a mortgage against the property which means there would not be any ‘profit’ or monies available if you were forced to sell, because mortgages have to be paid out first.
    Food for thought. Good luck
    Sideliner

    Sideliner

    Profile photo of hellmanhellman
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    Pre-nups aren’t really worth the paper they are written on. They only last for prob. 2yrs maximum (of course thats up to the court), also if your spouse didn’t see an independant solicitor they are torn up too.

    But the real problem is if your situation changes. For example if your partner sells their unit to have extra $$$ (and spends it), your situation has changed and the prenup could be torn up.

    As for trusts and companies for asset protection, the family court has the right to tear them up and basically say they don’t exist (yes even with proper paperwork).

    As a side note the family court can also bar you from leaving the country as well as put you in jail.

    So what can you do? Not much the only thing you can really do is have all your properties leveraged /mortgage to as high as you can get them so there is little equity.

    But even then if the family court believes you have the capacity to pay, it can simply order you to pay an abertary amount.

    So all you can really do is get the best lawyer you can.

    Hellman

    Profile photo of munjymunjy
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    @munjy
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    Originally posted by hellman:

    So all you can really do is get the best lawyer you can.

    And the most expensive. What’s the difference if she/he is going to get half anyway?

    hmmm… am I being too cynical? …nah

    Munjy

    Profile photo of calvin_thirty4calvin_thirty4
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    $0.25 buys a bullet – but I’m being stoopid![blush2]

    Cheers
    [email protected]

    Our greatest weakness lies in giving up. The most certain way to succeed is to always try something one more time.
    – Thomas Edison

    Profile photo of MillyMilly
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    @milly
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    Dont do it Duchess! Never consider it! I mean apart from the potential loss of assets……Do you really wanna pick up some blokes dirty socks? AND he will steal your remote control. You cant just serve up baked beans for dinner, you feel obliged to cook a ‘decent’ meal when there is a man about.

    nah . Much more romantic to live in separate houses.

    Profile photo of grossrealisationgrossrealisation
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    hi Dutchess
    Buy a duplex with the wall that can be removed. I’m doing one at harrington waters (is a house with 6 rooms) then if you split seal up the wall and preso you have two 3 br duplexes.you look after your debt and he looks after his.
    Try looking outside the square I would try one thing that hasn’t been mention yet try to find the right person from the start.
    but ha i’m synical

    here to help

    Profile photo of mookimooki
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    I used to work at the Family Court.. you should definately speak to a good lawyer if you are really concerned, it will be worth it in the long run.

    Go to http://www.familycourt.gov.au/presence/connect/www/home/guide/before/property/step_before_property_case

    It has the basics on property issues.. however it does not cover WA, which is a totally seperate jurisdiction to the rest of the country, so for info on WA laws go to http://www.familycourt.wa.gov.au

    (i.e. defacto property issues in VIC, NSW, etc would be dealt with via a State court however, from memory (i could be wrong), defacto property issues in WA are still dealt with in the Family Court unless seperation occured before 1999? and then it would be dealt with at the Supreme Court).

    Anyway, the websites will have links on how to locate lawyers specialising in family law.

    It is true though, prenups barely hold up in Court (at least the Family Court) especially when there are children involved and ex’s can get hold of your super.

    You could, like munjy said, put your assets in different names, which is how <edited> fathers out there show that they have no income, and therefore don’t have to pay child support… [angry2]

    But that would be too much work.. so speak to a good lawyer. [happy3]

    Profile photo of lifeXlifeX
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    @lifex
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    Great Link, thanks mooki.

    Would you have any advice for people who have worked really hard to acquire assetts and then have gold digging partners take all?


    Live, Learn and Grow

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    Profile photo of PsychiatristPsychiatrist
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    I think that the answer to your problem Dutchess is to be interested in a richer man.

    Munjy

    Dont know any do you?

    Profile photo of CeliviaCelivia
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    If I were happily in love [inlove] and my partner asked me for a Pre Nup I’d:
    *a- be hurt [crying] because asking me to sign a Pre Nup is like saying: I don’t trust you- you’ll run off with my money, OR
    *b-perhaps snap out of love [puke].

    The fact that they wouldn’t trust me would either mean that they don’t know me well enough- or they would know that I wouldn’t take advantage, (and I would suggest the relationship hadn’t matured enough to be living together so I wouldn’t take this step yet)…
    or it would mean that they don’t trust me full stop (and I’d run…without the money!).

    Just looking at it from the side of the one being asked to sign a Pre Nup.

    So, to the question whether a pre nup has any power, for me personally (not looking at it legally) it would mean it is the weakest link in a serious relationship.

    Celivia

    Profile photo of jhopperjhopper
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    Not that I have been in a position to require a pre-nup but tend to agree with Celivia. While the head might say its a good idea, the heart will probably run the other way. Regardless of the legalities, this could stop romance in its tracks.

    Interesting comments Mooki. As a divorced father, I have to say the Family Court of NSW is a place to avoid at all costs. There may be a lot of deadbeat dads out there but unfortunately, the ones who actually try and do the right thing get tarred with the same brush. Same goes for the CSA unfortunately. They are there for a reason but both can and are exploited by manipulative parties, both male and feamale.

    Sorry, just had dealings with the Family Court and am pretty pissed with the whole system…

    Back to pre-nups, nope, wouldn’t have changed a thing!

    Profile photo of XeniaXenia
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    @xenia
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    If my partner and I ever broke up (which is unlikely), the last thing I would be thinking about is how the stupid assets are divided, deciding what will happen to kids etc is more important than money!

    who cares????

    Just split the money in half and move on.

    You should always go into a relationship willing to give it 100%, if you dont trust your partner, find one you can trust and who’s absence will be much more devistating than money!

    We buy properties in Adelaide. Immediate Cash Settlements, No Real Estate Agents, No Fees.
    [email protected]
    phone 0412 437 582

    Profile photo of XeniaXenia
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    @xenia
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    ps, I disagree totally with marrying a rich man, do you want to be someones product or someones partner!

    why dont YOU learn to become rich instead?

    We buy properties in Adelaide. Immediate Cash Settlements, No Real Estate Agents, No Fees.
    [email protected]
    phone 0412 437 582

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