It might be assumed that financial agreements between de facto partners under the Family Law Act 1975 ("the Act") have the same requirements and consequences as financial agreements between couples who are intending to marry, married or divorced. This is not so. As a result, the legal advice required to be given is different...
The Family Court’s decision in Parker & Parker has important implications for financial agreements and legal professional privilege. Parker & Parker, delivered by the Full Court of the Family Court on 7 March 2012, is arguably the most significant decision on financial agreements since Black & Black. The Full Court...
How Family Law Reforms Impact Binding Financial Agreements In the last couple of years the earlier enthusiasm of legal practitioners for financial agreements has waned. A steady stream of reported cases has alerted legal practitioners to the technical difficulties of meeting the requirements of the Family Law Act 1975 ("the...
Changes are pending in Federal Parliament to the financial agreement provisions in the Family Law Act 1975 ("the Act"), particularly in relation to the following: Requirements to be binding; Grounds for setting them aside; and Spousal maintenance. The Family Law Amendment (Financial Agreements and Other Measures) Bill 2015...
There have been few reported cases with respect to the enforcement of financial agreements. Recently, the Family Court had to decide whether having previously refused to set aside a financial agreement or make a declaration that it was not binding, it could exercise its discretion not to enforce the agreement. In Fan &...
Husband Sues Lawyers Over Invalid Cohabitation Agreement A husband is suing his lawyers because his cohabitation agreement was not validly executed. The Family Court ordered that his former de facto wife was entitled to retain the husband’s Porsche with a personalised number plate, his cemetery plot, and $900,000 cash. His...
Introduction Besides the difficulties encountered by lawyers trying to navigate the complexities of Pt VIIIA (and the equivalent, but not precisely the same, provisions for de facto couples in Pt VIIIAB) including the retrospective amendments of s 90G(1) and the transitional provisions, family lawyers need knowledge of...
The Full Court of the Family Court of Australia in Grainger & Bloomfield[1] considered the standing of a creditor to apply to set aside a financial agreement after the debtor spouse became a bankrupt. Shortly prior to the bankruptcy, the bankrupt spouse transferred her legal title in the home to her husband, which left...
Introduction There are complex legal principles involved in drafting a financial agreement which will stand up to court scrutiny. There are two main risks: The agreement is found not to be binding because it does not meet the technical requirements; and The agreement is set aside. Two recent cases illustrate the problems. In...
How the High Court’s Ruling May Affect Financial Agreements How do the concepts of duress, undue influence and unconscionability apply to the setting aside of financial agreements? Are they alternative arguments or overlapping? Does the giving of legal advice mean that a financial agreement cannot be set aside for duress?...