Published on 13 February 2017
“While there are issues with the existing family law system, silver bullet solutions such as mandatory pre-nuptial agreements are misguided,” Slater and Gordon Family Lawyer Heather McKinnon said.
- “The Family Law Act clearly states that the interests of the child should be the highest priority during family breakdown and it would be very difficult, if not impossible, to determine what those needs are before the child was even born.
- “Our family law system is dealing with people who are experiencing severe emotional upheaval after their lives took a turn they did not predict. It would be impossible for couples to exactly envisage these circumstances and a pre-nuptial agreement worked out in happier times would likely be of little use.
- “Additionally, mandatory pre-nuptial agreements would be difficult to extend to unregistered de facto relationships, which can also impact heavily on children.”
How do we fix Australia’s family law system?
- “The biggest strength of the family law system is that it is structured to assess the specific needs of children in each individual situation,” Ms McKinnon said.
- “However, the system has been failing this objective in recent times, due to chronic under-resourcing highlighted by many Independent Children’s Lawyers.
- “Specific policies and initiatives to fix the system must be in consultation with legal, medical and allied health experts, rather than based on political conjecture.
- “I would invite all politicians concerned with the future of Australia’s family law system to educate themselves on how it works in practice. Visit a capital city family court and watch proceedings.
- “Politicians should be talking to senior people in the profession and asking about child support, development and the needs of children during family breakdown, because children must be the first priority in family law reform.”
Couples should also be aware that pre-nups are not a silver bullet for preventing or managing relationship breakdown:
- Pre-nups can be challenged and overruled: A pre-nup can provide a level of financial security, but it’s important to remember that they can be challenged and a court can set them aside.
- Circumstances can change: Someone might unexpectedly inherit money or need to stop working due to illness or raise children. What once seemed reasonable may not be viewed that way at the end of relationship.
- Independent advice is crucial: Couples should each seek independent advice as there are strict legal requirements about how pre-nups are drawn up.