By Gianna Huesch
A wife has been forced to consent to set aside her binding financial agreement in a case which highlights the need for such agreements to be fully compliant with the Family Law Act lest they become worthless.
Sometimes known as a pre-nuptial agreement or pre-nup, a binding financial agreement can actually be entered into before, during or after marriage or de facto relationship. It deals with the way a couple’s assets will be divided if their relationship breaks down.
In a number of recent cases, including the high profile case of swimming star Grant Hackett, the Family Court has shown it will demand strict compliance with the substantive and technical requirements under the Family Law Act or the agreement may be set aside.
In this case, the husband and wife had met with the wife’s solicitors at the wife’s behest, and had both signed the document despite the husband stating he had not previously seen the financial agreement he signed or even a draft of that agreement before the meeting. The wife claimed the husband had agreed they should obtain legal advice regarding the agreement however it was the wife’s submission that the husband told her solicitor on the day the agreement was signed that he had not obtained independent legal advice and would not be doing so. As such, both the wife and the husband thought he had waived his right to obtaining independent legal advice about the effect of the agreement.
The wife maintained that if she had known the financial agreement would not be binding given the husband had not obtained independent legal advice, she would have insisted on him doing so. The onus appears to have been on the wife’s solicitors to have appropriately instructed the wife in this regard.
In the end, because the simple fact stood that the husband had not obtained independent legal advice, which is a technical requirement for making a binding financial agreement, the Court was able to set the agreement aside.
Do you wish to discuss making a binding financial agreement? Please call Cristina Huesch or one of our solicitors here at Alliance Family Law to ensure you enter a watertight agreement and avoid the risk of having your agreement set aside by the Family Court.
(Source: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/91.html)
