Down Under in family law and inheritance law many things are quite different …
… than you are used to in Germany anyway; but also in comparison to inheritance law and family law in Great Britain, although Australian law is strongly influenced by English law. For example, there is a completely different legal succession in Australia than in England, Wales and Scotland. And marriage contracts (Pre-Nuptials, Marriage Agreements) are handled somewhat differently in Australia than in England. German-Australian married couples or German couples who live in Australia for a longer period of time or even emigrate there completely should therefore inform themselves about the local rules of legal succession as well as the family law of Australia (more precisely, of the respective Australian federal state). Otherwise, there is a risk of unpleasant surprises in the event of an emergency.

Inheritance Law in Australia

In contrast to German inheritance law (here, without a will, the spouse inherits half of the estate and the children the other half) and also to the rules of intestate succession in England & Wales (here), under Australian inheritance law (Australian Intestacy Rules), the surviving spouse has an extremely strong position. What surprises many (including Britons): If there is no will, the spouse is in most cases the sole heir according to Australian intestate succession. This is true even if the deceased had children!

The amendment of the Australian intestate succession by the Succession Amendment (Intestacy) Act 2009, which came into force on March 1, 2010 as a new Chapter 4 of the Succession Act 2006, has further improved the legal position of the surviving spouse in Australia if the deceased does not leave a will. For example, Chapter 4 of the Succession Act 2006 provides for the surviving spouse:

  • If the deceased was married but had no children, the spouse receives the entire estate. (If the deceased leaves a spouse and no children, the spouse is entitled to the whole estate).
  • If the deceased was married and had children along with the surviving spouse, the surviving spouse alone still receives the entire estate. (If the deceased leaves a spouse and children, and the children are the spouse’s children, the spouse is entitled to the whole estate).
  • If the deceased was married and had children, but they are not children of the surviving spouse, the estate is distributed as follows: see English version. (If the deceased leaves a spouse and children, but the children are not the spouse’s children, the spouse is entitled to:
  • the intestate’s personal effects (defined in section 101), and
  • a statutory legacy of $350,000.00 plus adjustment for CPI from December 2005, and interest if the statutory legacy is not paid in full within one year of the date of death. For the definition of statutory legacy, see section 106).
  • one-half of the remainder (if any) of the estate
  • As you can imagine, Australians have a different idea of fair statutory succession than we continental Europeans or Britons. As a rule, children are left completely empty-handed, siblings of the deceased anyway. This seems strange to a German inheritance lawyer. Not to mention that for the Australian natives (Aboriginees, indigenous peoples), special regulations apply, including the admissibility of polygamy.

However, German expats in Australia or emigrants to Australia often assume that upon their death, their children will inherit at least a portion. Mistake! Therefore, you should urgently make a will or check your existing German will in order to really inherit your estate the way you want. Especially since it is not only about the assets located in Australia, but about the entire worldwide assets of the deceased, since the Australian inheritance law applies to the entire “global estate”, if the deceased had his main residence (habitual residence) in Australia before his death.

In Australia you do not have to marry at all

By the way: In Australia, you are “married” faster than you think. The Australian family law knows the legal concept of the so-called “domestic partnership”, also called “de facto partnership”. Many rules that apply to married couples are already applied by Australian law to permanent non-marital partnerships, so-called “common law marriage” (which also applies in Brazil, for example). Therefore, extreme caution is advised when moving in with your partner in Australia: he or she has the same rights as a “real” spouse, both in the case of divorce and in inheritance law.It is best to ask one of the top family lawyers in sydney about this.

Where does it say that? Well, for example, section 105 of the Australian Succession Act defines a “domestic partnership” for inheritance purposes as a relationship between the deceased, who died without a will, and another person with whom he or she lived either in a registered partnership or in a “de facto relationship”. This “de facto” marriage, in turn, is assumed if, according to the original English text:

the partnship has been in existence for a continuous period of at least 2 years, or
the partnership has resulted in the birth of a child.
Conclusion: Marriage is unnecessary. In Australia, the rules of family and inheritance law often apply even through mere serious cohabitation.

Do prenuptial agreements apply in Australia?

This is also a complicated issue Down Under. In principle, marriage contracts (Pre-Nuptials, Prenuptial Agreements, Marriage Agreements) can be concluded in Australia. This is even expressly regulated in sections 90A and 90B of the Australian Family Law Act 1975. But: Australian judges are very skeptical about marriage agreements (as well as “unfair” wills) (see newspaper article here). This means that Australian prenuptial agreements are often annulled or adapted in case of emergency. And wills are also declared invalid much more often than one is used to in Germany. Nevertheless, a prenuptial agreement is worth considering for German couples in Australia.

What is a “Prenuptial Agreement (Prenup)” under Australian law?

In Australia, a “prenuptial agreement” as defined by the Family Law Act 1975 is a binding agreement on financial matters in the event of divorce (Binding Financial Agreement, abbreviated BFA). This sets out the assets and liabilities that each partner brings into the marriage and how the assets are to be distributed in the event of divorce.

The formal and substantive requirements for an effective prenuptial agreement in Australia are very similar to the requirements in England, tending to be even stricter. Here is a summary of the effectiveness requirements for Australian prenuptial agreements in the original English wording:

  • Prenups must be in writing and they must comply with strict legal guidelines as outlined in the Family Law Act 1975.
    The prenup must include a complete disclosure of each person’s financial standing.
  • Each partner to the prenup must have received independent legal advice by an Australia lawyer before signing the prenup.
  • Each person must have signed the prenup voluntarily, i.e. free from coercion, duress or undue influence. Especially, no partner must tell the other partner that they will not marry them unless they sign a prenup.

Does a prenup apply in Australia under all circumstances?

To ask the question is to answer it in the negative! As mentioned above, Australian courts are rather skeptical about prenuptials. The actual or perceived disadvantaged spouse (often the wife) therefore has a high chance of success if he or she legally challenges the prenuptial agreement. The most common reasons for declaring a prenuptial agreement invalid are:

  • Children not mentioned or adequately financially provided for in the prenuptial agreement.
  • Missing or incomplete list of assets (financial disclosure). Each partner must fully disclose his or her financial circumstances.
  • Blackmail or – even subtle – pressure (in English: “unreasonable pressure, i.e. if a partner unreasonably pressures or coerces the other party into signing the agreement).
  • Too little time for consideration (last minute decision): There should be some weeks (better months) before the wedding date to negotiate and consider the prenuptial agreement.
  • Unfairness in content. At the latest here all bets are off. What an Australian judge considers fair or unfair is hardly predictable.
  • Therefore, in Australia, there is always a considerable risk as to whether the prenuptial agreement will actually hold in the event of an emergency.

For more information on international family and divorce law, see these articles:

  • In love with a British woman?
  • Splitting up assets in the event of divorce in England
  • Divorce better with coffee or tea?
  • Tip for professional footballers: Never let a player’s girlfriend move in with you
  • Myth of “immediate” divorce (Germany and UK)
  • Property division in separation and divorce under English law
  • Who the hell are Billie Piper and Laurence Fox? English divorce law using the example of an actor couple
  • Family emergency folder for expats in Germany
  • Scotland is not England: Caution in inheritance law and family law
  • English-language brochure on German inheritance law
  • London solicitor Darrell Webb joins German-English family law team
  • Involved in English legal dispute?