Does poor English put you at a “special disadvantage” signing a Binding Financial Agreement?

Recently we discussed a case where a wife attempted to have a Binding Financial Agreement set aside on the grounds of “duress” among other things. In that case the wife was unsuccessful. But another recent case involving a Binding Financial Agreement also raises interesting issues around enforceability of the financial contract and the case offers up a good tip to anyone marrying someone whose first language isn’t English, and entering into a Binding Financial Agreement: make sure you get an interpreter.

In the case of Corelli & Beroni in the family court at Adelaide, the wife argued there was “duress”, “undue influence” and “unconscionable conduct” on the part of a spouse who was taking advantage of a “special disadvantage” that she had. As in the other case we mentioned, this wife was also unsuccessful on the subject of duress. It can be quite difficult to prove duress as it is not enough to argue that someone is putting pressure on you to sign something. Evidence has to reach the level of threats to your life.

However, this wife succeeded in her further arguments as to why her Binding Financial Agreement should be set aside.

Both cases involved a “controlling” husband and allegations of family violence. But whereas in the former case, family violence was found not to indicate duress in itself, in the latter case, the husband’s “dominance” over the wife and his “controlling” nature were found to contribute to the undue influence established.

In the current case, a pair of de facto spouses had been disputing the enforceability of their Binding Financial Agreement. It’s been a long-running trial, taking up 10 court days over eight months. The de facto husband in this case is aged 87 and has already been to court with a previous wife over an asset pool valued at $48 million.

But now, the man’s second wife was arguing their Binding Financial Agreement should not stand because she had signed it at a disadvantage to the husband.

Binding Financial Agreement:
Case background

In the judgment the following characterisation can be found:

[T]he husband was…in a de facto relationship with a much younger, attractive, hard working woman, with whom he was enjoying an active social and sexual life, and who was providing him a level of personal care that he likely had not enjoyed for many years, if ever. On the other hand, he was considerably wealthy, of increasing age, and used to deploying his wealth to manipulate and control family members. Further, he was embittered by his 1996 property settlement, and determined he would never be the victim of one again. He wanted to have both his relationship with the wife, and his wealth, but free from any claim by her.”

To achieve his goal, the judge said, the husband “downplayed the significance of the [BFA]” but made its signature almost compulsory for the relationship to continue.

The BFA had been drafted in English and a lawyer had explained the terms to her in English but the BFA hadn’t been translated for the wife.

As the judge in the case noted, a critical issue became how well the wife could communicate in English at the time of signature.

The evidence established that at the time of signing, the wife’s English skills were poor. The court wound up “well satisfied that, at that time, the wife was not sufficiently fluent in English to fully understand the agreement without interpretation.”

The wife’s “special disadvantage” came about due to the fact she couldn’t speak, read or understand English well and was dependent on the husband to assist her to do so”. Further she was less versed in the laws around de facto property division, she was dependent on the husband for financial security, accommodation, and to not to report her illegal visa status to immigration.

These factors were also found to signify “undue influence” was present.

Key takeaway of this case?

Avoid any future argument that a language barrier threatens enforceability of your BFA by ensuring an interpreter is available to a spouse with less than perfect English.

You can read the entire case here.

Do you need assistance with a Binding Financial Agreement or another family law issue? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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