In the case of Hoult & Hoult  FamCAFC 109 Strickland and Ainslie-Wallace JJ opined at para. :
“ … The point of the legislation is to allow the parties to decide what bargain they will strike, and provided the agreement complies with the requirements of section 90G(1) they are bound by what they agree upon.
Significantly, in reaching agreement, there is no requirement that they meet any of the considerations contained in section 79 of the Act, and they can literally make the worst bargain possible, but still be bound to it."
If any of the following apply the Binding Financial Agreement (BFA) can be set aside by the courts:
Make sure there is plenty of time.
Watch out for the looming wedding date which could provide a basis for a claim of undue influence or duress.
If a party does not have a good command of English, DO NOT allow the intended partner or a relative to act as an interpreter.
This may lead to allegations of undue influence or duress or that the party did not understand the BFA.
If a party to a Binding Financial Agreement (BFA) is aware of relevant information and does not disclose it to the other party, whether intentionally or non-intentionally, the Court may set the agreement aside at a later date, under section 90K of the Family Law Act:
"A court may make an order setting aside a financial agreement if and only if, the court is satisfied that: the agreement was obtained by fraud (including non-disclosure of a material matter)…"
❌ If a party fails to disclose the true extent or value of his or her assets.
This might occur, by way of example, if a party:
➲ Hides assets;
➲ Mistakenly assumes the assets don't need to be disclosed, such as property held in the name of a Trust which they directly control, or property held overseas which the other party knows nothing about, or cryptocurrency they have forgotten they own but could become worth a material sum;
❌ Not disclosing the true value of assets, or material information which could assist to determine the true value of assets;
❌ Failure to disclose other material information which would impact on a person's decision to enter into the Binding Financial Agreement; or
❌ Deceiving the other party in some way, in order to induce them to sign the Binding Financial Agreement.
In such a case, he or she would create an inherent weakness in the Binding Financial Agreement, leaving the possibility open for it to be challenged at a later date by the disgruntled ex-partner.
Family Law Act 1975 (Cth.)
90K Circumstances in which court may set aside a financial agreement or termination agreement
(1) A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that:
(d) since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or
These avoidable mistakes made by one or both of the parties lawyers were incapable of rectification by the Court.
This meant that the Court had no choice but to invalidate and set aside the BFA in the following situations:
➲ The wrong type of Binding Financial Agreement was entered;
➲ There were mistakes in one or both of the Lawyer's Certificates;
➲ The BFA was executed by a party before receipt of legal advice;
➲ Out-dated Lawyer Certificates were used;
➲ The lawyer failed to record the advice provided and have the party sign an acknowledgement of having received the advice;
➲ There were other legally technical matters wrong regarding the BFA such as it being signed in counterparts or a translator was delegated to provide the legal advice.
❌ If a party enters a BFA for the purpose of defrauding or defeating the interests of creditor/s or another person who might claim rights due to the existence of an additional de facto relationship.
If a Binding Financial Agreement (BFA) is set aside, it means that it is “as if” the original agreement never existed.
Either party is then free to commence proceedings seeking a property settlement and/or spousal maintenance.
If at anytime, for any reason both parties agree, the parties could decide to replace the BFA with an alternative or updated BFA.
Important: All of the above notes regarding setting aside a BFA, apply to any alternative or updated BFA.
The same rigor must be applied. New certificates of independent legal advice must be obtained, etc.
If the parties have separated, it is also possible for the terms of a BFA to be overridden by consent orders filed with the Court (subject to amendment by the Court if they are deemed not to be fair and equitable).
The legal term “set aside” means to declare a legal agreement, decision or process to be invalid.
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.