Love In The Time Of Facebook

I wanted to write another social media themed post to tie up this little thread I appear to be on lately. This time around however I’d like to focus on the way Facebook seems to be changing the way family law operates in Australia in regard to pre-nuptial agreements. Of course this is a very general opener to the world of the pre-nuptial agreement. In the future I hope to delve a little deeper in to some interesting developments of asset division in the area of family law. But for now, let’s start with the basics.

Pre-Nuptial agreements are a predominantly American concept that have dominated the marital psyche due to celebrity obsessed news items reporting on high profile breakdowns. In Australia these arrangements are referred to as binding financial agreements and are covered in various details within s90 of the Family Law Act.

Firstly, what exactly is a prenup or binding financial agreement as far as Australian law is concerned? Well it’s a surprisingly simple concept. As the name suggests this is a financial arrangement between two parties who are intending to get married or live in a de facto relationship. This agreement records what assets and liabilities each person brings in to the relationship and establishes terms that cover what will happen if things break down with regard to finances and how they will be divided.

It’s no great secret to anyone that has been exposed to any side of a divorce proceeding that things have a tendency to get ugly quickly. Each side not hesitating to pull out all the stops and expose anything potentially damaging that may swing the odds in their favour. With Facebook this appears to have been made much easier with pages of screen captured posts now being delivered to lawyers.  Some couples are even asking for “lifestyle clauses” to be added to any agreement that will protect any social media activity and content in the event of a relationship breakdown.

With one in every three Australian marriages ending in divorce there are law firms starting dedicated websites to these binding financial agreements much like we have seen the rise of personal injury law websites within the last five years.

So the big question is just what exactly do you need to know before deciding to go down this road? Well the legislation sets out some very strict guidelines for what needs to happen.

  • The agreement MUST be in writing
  • Each party is required to have received their own independent legal advice before signing. It isn’t enough to consult the same lawyer or even the same firm in case of a conflict of interest.
  • The legal advice provided needs to have come from a lawyer practicing in Australia.
  • Both parties are required to sign the agreement of their own volition – free of any duress or any potential undue influence. One party cannot make a condition that the marriage will only proceed if the agreement is signed.
  • The agreement needs to contain a full and frank disclosure of each parties financial standing.

Many lawyers are reporting that these new considerations for the social media generation are becoming all too common. Things such as joint Facebook albums of holidays and children, or even how personal information is exchanged online is often used at the beginning of a relationship to showcase its strength but quickly turn to a weapon when things go wrong.  It makes sense to take precautions to protect your online presence. As mentioned in previous posts on this site, it’s all too easy to post something angry in the heat of the moment. However like in other aspects such as employment and defamation, separations are using these online trails to paint a picture that is detrimental to the other side.  It’s important to exercise as much caution as possible on social media and keep it as impersonal as practicable. If you find yourself in need of a legal practitioner on any of these areas, it’s essential that you be very open about your social media presence so that any damage can be mitigated as soon as possible.

Courts as a general rule don’t seem to like these agreements being in place when a divorce proceeding comes before them. But that shouldn’t deter you from taking steps to protect your assets and possibly avoid litigation if your marriage should break down.

I could spend pages writing on this area and refer you to recent cases but for now I think this general overview will serve you well as a guide on how to protect your Facebook page from leaving very large teeth marks on your life’s backside.

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