BINDING FINANCIAL AGREEMENTS

Paul Doolan

May 2011

Black & Black Amendments

Retrospective legislative response

Commenced 4 January 2010

Section 90G(1)(a)

A financial agreement is binding on the parties if, and only if:

(a) The agreement is signed by all parties; and

Section 90G(1)(b)

(b) Before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and

Section 90G(1)(c)

(c) Either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and

Section 90G(1)(ca)

(ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party;

“Get out of Jail Card”

s90G(1A) – enforcement application

Kostres & Kostres [2009] Fam CAFC 222

Full Court of Family Court Problems of drafting agreements and

contractual certainty

Wallace & Stelzer [2011] FamCA 54

Appeal pending to Full Court Constitutional validity of 2010 amendments Equitable rectification

Balzia & Covich [2009] Fam CA 1357

Onus of Proof Rectification

Senior & Anderson [2010] Fam CA 601

Document mistakenly drawn pursuant to s90C not s90D

Rectification

Cardwell v Hansell; unreported, Altobelli FM

s90E Release of maintenance rights

Parker & Parker [2010] Fam CA 664

Appeal reserved by Full Court Meaning of “unjust and inequitable if the

agreement were not binding”

 

What do clients usually expect it will cost for you to draft a ‘standard’ BFA?

What does it actually cost (range) for you to draft a ‘standard’ BFA?  And what is the most you have charged a client for work on a BFA?

Have you had a costs dispute with a client about work you did on a BFA?

Do you mark client files dealing with BFA’s “not to be destroyed”?

Do you store an extra copy of signed BFA’s  somewhere else than simply with the client file? If yes, where?

What is the most common misconception clients have about BFA’s?

How close to the date of a wedding, are you prepared to prepare a BFA or sign a Certificate/Statement of Independent Legal Advice for a client?

Have you been involved in a case, where a wedding has been called off due to a dispute about the terms of a proposed BFA?

What is the strangest clause you have been asked by a client to put in a BFA?

Do you think the changes to s90G that came into effect on 4 January 2010 :– Fully address and solve the confusion about when

BFA’s are binding;– Partially address and solve the confusion about

when BFA’s are binding;– Add to the confusion about when BFA’s are

binding.