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Recent Binding Financial Agreement Decisions – By Abbi Golightly – Accredited Family Law Specialist

Two recent decisions of the Federal Magistrate Court evidence that it is becoming increasingly difficult to succeed in an application to set aside Binding Financial Agreements, which is a marked change from the days after B v B (2008) FLC 93-357 when it was “open slather” on setting such agreements aside. It is now increasingly difficult to set aside Financial Agreements and it is therefore imperative that full and complete independent legal advice be obtained prior to entering into such an Agreement.

Firstly in the matter of Ryan & Joyce [2011] FMCAfam 225 the Court has found that a Financial Agreement which was intended to be a “pre-nuptial Agreement” but which was not signed until after the parties were married was still a valid and enforceable Financial Agreement, thereby precluding the Husband from making a further claim for property settlement. The evidence established that the Husband knew at the time of execution that the Agreement contained erroneous references to s90B but that he executed the Agreement nonetheless. The Husband did not challenge the enforceability of the Agreement until after separation. In upholding the validity of the Agreement, the Court said:-

“Whatever was, and what was not, said (or now disputed)… the reality is that an agreement was signed by Mr Ryan… he has taken no action to challenge the document that bears his signature… he must be taken to be bound by what he signed. Whatever his internal reservations or intention, his external action was such that he exhibited to all and particular to Ms Joyce that he agreed to the terms of, and to be bound by, the agreement”.

Secondly, in a decision of Otero & Otero [2010] FMCAfam 1022 the Wife sought to have a Financial Agreement declared invalid as a result of the failure to attribute a value to the parties interest in a company which subsequently was valued at approximately $1 million. The Wife asserted that she agreed with no value being attributed to the company as she “just wanted it over with” and that if she had have known its true value she would not have entered the Agreement.

The parties had held direct negotiations for a period of 10 weeks and had Solicitors involved in discussions for approximately 6 weeks. The Husband admitted making some aggressive and hostile telephone calls to the Wife but the Wife did not seek her Solicitors raise this conduct with the Husband’s representative nor did she pursue any domestic violence remedies.

The Court was satisfied that the Husband did nothing to induce the Wife to enter into the Agreement nor was there a failure to disclose a material matter. The Court accepted that the Husband admitted to the Wife that he had “no idea” as to the value of the company and the recitals to the Agreement confirmed this. The Wife’s decision to move on financially and therefore conclude that she did not wish to further investigate the value of the company was considered by the court to be a “pragmatic” decision she made at the time rather than relying on anything the Husband did or said.


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Hayley Condon

Hayley Condon

  • Senior Associate
  • Family Law
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