Binding Financial Agreements Paul Fildes Justine Clark

Binding Financial Agreements
Family Law Conference
Leo Cussen Centre for Law
13 September 2012
Paul Fildes
BEc LLB DipFamLaw
Accredited Family Law Specialist (LIV)
Partner | Taussig Cherrie Fildes
Research by
Justine Clark
BA LLB (Hons)
Associate | Taussig Cherrie Fildes
JXCADMIN/BFAs (LeoCussen Seminar) 080912
Over the past two years, there have been a significant number of decisions of the
Family Court relating to Financial Agreements. Those decisions have discussed what is
required for the Court to be satisfied that there is an agreement, that the agreement as
found constitutes a “financial agreement”, and that such an agreement is binding, valid
and enforceable against the parties. There does not appear to be agreement between
Judges of the Family Court, or Judges of the Full Court of the Family Court, on these
issues. Recent decisions made at first instance deal with the requirements on
practitioners in documenting advice given in relation to section 90G and whether there is
the capacity for parties to bring negligence proceedings in the Family Court as part of
the Court’s accrued jurisdiction in circumstances where the advice provided was not
compliant with the Act and as a consequence the agreement was not binding. What is
clear is that financial agreements need to be drafted with care, and practitioners need to
be aware of a number of recent authorities in order to be in a position to properly advise
clients and to best ensure that financial agreements entered into are agreements that
comply with section 90G and the other provisions of the Family Law Act 1975 (Cth). If a
financial agreement does not comply with the requirements of the Act, it is likely that the
agreement will not have binding effect and will not oust the jurisdiction of the Family
Court pursuant to s 71A of the Act in property settlement proceedings. Although the Full
Court has not yet determined the matter, Murphy J is of the view that the court’s accrued
jurisdiction does allow a party to bring negligence proceedings against opposing
solicitors who failed to give the requisite advice.
Further to the above, legal practitioners need to be aware of the provisions of the
Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009 (Cth) (“the
Transitional Act”) that relate to Financial Agreements made on or after 27 December
2000 and before 3 January 2010 in proceedings relating to the validity and enforceability
of financial agreements. Further, a number of the authorities from 2007 to date relate to
the requirements in the Act as to the advice to be given to each party regarding a
financial agreement, and the certificates (now statements) to be signed by legal
practitioners to verify that the requisite advice pursuant to s 90G(1)(b) has been provided
to a party prior to signing the agreement, in order for the financial agreement to have
binding effect. To clarify these requirements, I will briefly outline the provisions of the Act
relating to Financial Agreements for parties who are married or are contemplating
marriage. Given time constraints, I will not address the provisions relating to parties
contemplating a de facto relationship or in a de facto relationship.1 Subsequently, I will
discuss the recent Full Court authority of Parker v Parker [2012] FamCAFC 33 and the
decisions of Hoult v Hoult [2011] FamCA 1023, [2012] FamCA 367, and Ruane v
Bachmann-Ruane [2012] FamCA 369 and their relevance to practitioners.
Provisions in the Family Law Act
The following provisions are central to understanding what is required for agreements to
be deemed financial agreements, and for those financial agreements made to be binding
and valid.
Section 71A in Part VIII provides that:
This Part does not apply to certain matters covered by binding financial
agreements
(1)
This Part does not apply to:
(a)
1
financial matters to which a financial agreement that is binding on the
parties to the agreement applies; or
See Martin Bartfeld QC: “Family Law Financial Agreements – Some Observations”.
(b)
(2)
financial resources to which a financial agreement that is binding on
the parties to the agreement applies.
Subsection (1) does not apply in relation to proceedings of a kind referred to
in paragraph (caa) or (cb) of the definition of matrimonial cause in
subsection 4(1).
Section 71A effectively provides that, where there is a financial agreement between the
parties to a marriage that is binding and valid, the Court’s jurisdiction under Part VIII, and
hence s 79 and s 75, with respect to the financial matters and financial resources to
which the agreement applies, does not operate. However, recent authorities offer
caution to ensure that financial agreements are “agreements” according to contractual
principles and are “financial agreements” pursuant to ss 90B, 90C, 90D of the Act.
Firstly, pursuant to the Full Court authority of Senior v Anderson (2011) FLC 93-470
there must be an agreement. This means that there must be an agreement according to
the law of contract (see also s 90KA). Section 4 of the Act provides that:
financial agreement means an agreement that is a financial agreement under
section 90B, 90C or 90D, but does not include an ante-nuptial or post-nuptial
settlement to which section 85A applies.2
In Senior v Anderson, Strickland J, with whom Murphy J concurred, reasoned at [94]
that:
The Act in effect draws a distinction between agreements which are financial
agreements (s 4, s 90B, s 90C, s 90D) and those financial agreements which are
binding (s 90G). Financial agreements can, like any other agreement, govern the
actions of the parties to them and bind the parties to obligations, but do not oust the
jurisdiction of the court. Parties to an agreement that satisfies the definition of
“financial agreement” are bound by its terms (or not bound as the case may be), just
as they would be bound (or not bound) by any other agreement (s 90KA) (see
generally Australian Securities and Investment Corporation and Rich & Anor (2003)
FLC 93-171).
Other authorities discuss this notion of the requirement for an agreement to exist at law,
and this concept is briefly discussed by Murphy J in Parker v Parker [2012] FamCAFC
33. See, in particular, the authorities of Fevia v Carmel-Fevia (2009) FLC 93-411 (but
note that this decision predates the Transitional Act) and Sullivan & Sullivan [2011]
FamCA 752.
Sections 90B, 90C and 90D provide that, to be a “financial agreement”, the agreement
must comply with one of those sections. Section 90B provides for agreements entered
into prior to marriage, s 90C provides for agreements entered into during marriage, and
s 90D provides for agreements entered into after marriage. The requirements of sections
90B, 90C and 90D, respectively, are essentially the same, save for the time that the
section provides for the agreement to be made.
However, this distinction is important as although an agreement can be rectified to state
the correct section if both parties are labouring under a common mistake (eg, the parties
signed the agreement under s 90B but were married at the time the agreement was
signed), rectification is unlikely to be available for a unilateral mistake (eg, where one
party is mistaken as to the section under which the agreement was signed) or in
circumstances where each party signs the agreement pursuant to a different section.
This is because, in those circumstances, there can be no common intention between the
parties to enter into a financial agreement pursuant to either s 90B or ss 90C or 90D.
Furthermore, in circumstances where the parties are executing a “financial agreement”
pursuant to the Act, the intention of the parties will generally be to make an agreement
pursuant to one of those sections. It follows that the agreement will fall into the third
category of agreements discussed in Masters v Cameron (1954) 91 CLR 353 (as
2
Please also note the definitions of “financial matters” and “matrimonial cause” in section 4 of the
Act.
articulated by Murphy J recently in Parker v Parker [2012] FamCAFC 33 at [182]) “the
intention of the parties is not to make a concluded bargain at all, unless and until they
execute a formal contract”. See also Senior v Anderson (2011) FLC 93-470, Sullivan &
Sullivan [2011] FamCA 752 and Ruane v Bachmann-Ruanne [2009] FamCA 1101
regarding rectification as a remedy in relation to financial agreements.
More specifically section 90B provides that:
90B Financial agreements before marriage
(1)
(2)
(3)
(4)
If:
(a)
people who are contemplating entering into a marriage with each other
make a written agreement with respect to any of the matters
mentioned in subsection (2); and
(aa)
at the time of the making of the agreement, the people are not the
spouse parties to any other binding agreement (whether made under
this section or section 90C or 90D) with respect to any of those
matters; and
(b)
the agreement is expressed to be made under this section;
the agreement is a financial agreement. The people may make the financial
agreement with one or more other people.
The matters referred to in paragraph (1)(a) are the following:
(a)
how, in the event of the breakdown of the marriage, all or any of the
property or financial resources of either or both of the spouse parties
at the time when the agreement is made, or at a later time and before
divorce, is to be dealt with;
(b)
the maintenance of either of the spouse parties:
(i)
during the marriage; or
(ii)
after divorce; or
(iii)
both during the marriage and after divorce.
A financial agreement made as mentioned in subsection (1) may also contain:
(a)
matters incidental or ancillary to those mentioned in subsection (2);
and
(b)
other matters.
A financial agreement (the new agreement) made as mentioned in
subsection (1) may terminate a previous financial agreement (however made)
if all of the parties to the previous agreement are parties to the new
agreement.
Similarly, section 90C provides that:
90C Financial agreements during marriage
(1)
If:
(a)
the parties to a marriage make a written agreement with respect to
any of the matters mentioned in subsection (2); and
(aa)
at the time of the making of the agreement, the parties to the marriage
are not the spouse parties to any other binding agreement (whether
made under this section or section 90B or 90D) with respect to any of
those matters; and
(b)
the agreement is expressed to be made under this section;
the agreement is a financial agreement. The parties to the marriage may
make the financial agreement with one or more other people.
(2)
The matters referred to in paragraph (1)(a) are the following:
(a)
how, in the event of the breakdown of the marriage, all or any of the
property or financial resources of either or both of the spouse parties
at the time when the agreement is made, or at a later time and during
the marriage, is to be dealt with;
(b)
the maintenance of either of the spouse parties:
(i)
during the marriage; or
(ii)
after divorce; or
(iii)
both during the marriage and after divorce.
(2A)
For the avoidance of doubt, a financial agreement under this section may be
made before or after the marriage has broken down.
(3)
A financial agreement made as mentioned in subsection (1) may also contain:
(a) matters incidental or ancillary to those mentioned in subsection (2); and
(b) other matters.
(4)
A financial agreement (the new agreement) made as mentioned in
subsection
(1) may terminate a previous financial agreement (however
made) if all of the parties to the previous agreement are parties to the new
agreement.
Finally, section 90D provides that:
90D Financial agreements after divorce order is made
(1)
(2)
(3)
(4)
If:
(a)
after a divorce order is made in relation to a marriage (whether it has
taken effect or not), the parties to the former marriage make a written
agreement with respect to any of the matters mentioned in subsection
(2); and
(aa) at the time of the making of the agreement, the parties to the former
marriage are not the spouse parties to any other binding agreement
(whether made under this section or section 90B or 90C) with respect
to any of those matters; and
(b)
the agreement is expressed to be made under this section;
the agreement is a financial agreement. The parties to the former
marriage may make the financial agreement with one or more other
people.
The matters referred to in paragraph (1)(a) are the following:
(a)
how all or any of the property or financial resources that either or both
of the spouse parties had or acquired during the former marriage is to
be dealt with;
(b)
the maintenance of either of the spouse parties.
A financial agreement made as mentioned in subsection (1) may also contain:
(a)
matters incidental or ancillary to those mentioned in subsection (2);
and
(b)
other matters.
A financial agreement (the new agreement) made as mentioned in
subsection (1) may terminate a previous financial agreement (however made)
if all of the parties to the previous agreement are parties to the new
agreement.
Please note ss 90C(2A) and 90D(1)(a). An agreement made after marriage has broken
down, but before a divorce order has been granted must be made pursuant to s 90C of
the Act to be a “financial agreement”, not s 90D.
Once an agreement is deemed to be a “financial agreement” the question is whether it is
binding. To be binding, a financial agreement must comply with s 90G. This is where the
provisions of the Transitional Act come into play for agreements made between
27 December 2000 and 3 January 2010. Subsection 90G(1) was inserted into the Act
by the Family Law Amendment Act 2000 (Cth), which came into force on 27 December
2000. A subsequent Act, the Family Law Amendment Act 2003 (Cth), amended s 90G
and changed the requirements for s 90G(1)(b), reducing them from four items to two
items. The amended s 90G came into force on 14 January 2004. In 2008, the Full
Court’s decision of Black v Black (2008) FLC 93-357 was handed down, and Parliament
enacted the Transitional Act to “restore confidence and certainty in the binding nature
and enforceability of financial and termination agreements under the Family Law Act” by
introducing subsections 90G(1A),(1B),(1C) and (2) to overcome a lack of compliance
with the technical requirements set out in s 90G(1).
The Transitional Act included provisions that provided for its retrospective application to
agreements made between 27 December 2000 and 13 January 2004, and between 14
January 2004 and 3 January 2010. The consequence is that, for agreements made
between 27 December 2000 and 3 January 2010, care has to be taken to apply the
correct form of s 90G in its entirety to the financial agreement to determine whether it is
binding (please see the three forms of s 90G applicable in Annexure A to this paper).
Essentially subsection 90G(1A) is intended to operate to allow a financial agreement to
be binding in circumstances where the requirements of s 90G(1) have not been
complied with. However, in particular, the form of s 90G as retrospectively amended by
the Transitional Act for the period between 14 January 2004 and 3 January 2010 does
not operate as intended. Subsection 90G(1A)(b) only allows s 90G(1A)(c) to operate if
advice has not be provided on the agreement as required by s 90G(1)(b). The Full Court
of the Family Court has, in the recent decision of Parker v Parker [2012] FamCAFC 33,
confirmed that the form of s 90G applicable to agreements made in this period is as set
out in Annexure A, and the reasoning of Murphy J highlights the deficiency in the
retrospectively amended s 90G(1A). Happily, this is not an issue for the form of s 90G
applicable to agreements made between 27 December 2000 and 13 January 2004 or
from 4 January 2010 onwards.
Assuming that a financial agreement is found to be binding pursuant to s 90G, the
question that arises is whether any of circumstances in s 90K arise that may result in the
court setting aside the financial agreement notwithstanding its compliance with s 90G.
Section 90K provides that:
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:
(a)
the agreement was obtained by fraud (including non-disclosure of a
material matter); or
(aa) a party to the agreement entered into the agreement:
(i)
for the purpose, or for purposes that included the purpose, of
defrauding or defeating a creditor or creditors of the party; or
(ii)
with reckless disregard of the interests of a creditor or creditors
of the party; or
(ab) a party (the agreement party) to the agreement entered into the
agreement:
(i)
for the purpose, or for purposes that included the purpose, of
defrauding another person who is a party to a de facto
relationship with a spouse party; or
(ii)
for the purpose, or for purposes that included the purpose, of
defeating the interests of that other person in relation to any
possible or pending application for an order under section
90SM, or a declaration under section 90SL, in relation to the de
facto relationship; or
(iii)
with reckless disregard of those interests of that other person;
or
(b)
the agreement is void, voidable or unenforceable; or
(c)
in the circumstances that have arisen since the agreement was made
it is
impracticable for the agreement or a part of the agreement to
be carried out; or
(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
(e)
(1A)
(2)
(3)
(4)
(5)
(6)
in respect of the making of a financial agreement—a party to the
agreement engaged in conduct that was, in all the circumstances,
unconscionable; or
(f)
a payment flag is operating under Part VIIIB on a superannuation
interest covered by the agreement and there is no reasonable
likelihood that the operation of the flag will be terminated by a flag
lifting agreement under that Part; or
(g)
the agreement covers at least one superannuation interest that is an
unsplittable interest for the purposes of Part VIIIB.
For the purposes of paragraph (1)(aa), creditor, in relation to a party to the
agreement, includes a person who could reasonably have been foreseen by
the party as being reasonably likely to become a creditor of the party.
For the purposes of paragraph (1)(d), a person has caring responsibility for
a child if:
(a)
the person is a parent of the child with whom the child lives; or
(b)
a parenting order provides that:
(i)
the child is to live with the person; or
(ii)
the person has parental responsibility for the child.
A court may, on an application by a person who was a party to the financial
agreement that has been set aside, or by any other interested person, make
such order or orders (including an order for the transfer of property) as it
considers just and equitable for the purpose of preserving or adjusting the
rights of persons who were parties to that financial agreement and any other
interested persons.
An order under subsection (1) or (3) may, after the death of a party to the
proceedings in which the order was made, be enforced on behalf of, or
against, as the case may be, the estate of the deceased party.
If a party to proceedings under this section dies before the proceedings are
completed:
(a)
the proceedings may be continued by or against, as the case may be,
the legal personal representative of the deceased party and the
applicable Rules of Court may make provision in relation to the
substitution of the legal personal representative as a party to the
proceedings; and
(b)
if the court is of the opinion:
(i)
that it would have exercised its powers under this section if the
deceased party had not died; and
(ii)
that it is still appropriate to exercise those powers; the court
may make any order that it could have made under subsection
(1) or (3); and
(c)
an order under paragraph (b) may be enforced on behalf of, or
against, as the case may be, the estate of the deceased party.
The court must not make an order under this section if the order would:
(a)
result in the acquisition of property from a person otherwise than on
just terms; and (b) be invalid because of paragraph 51(xxxi) of the
Constitution. For this purpose, acquisition of property and just
terms have the same meanings as in paragraph 51(xxxi) of the
Constitution.
As is evident from s 90K, a number of grounds arise that can form the basis of setting aside
a binding financial agreement, and care must be taken to ensure that the other party to the
agreement has been properly advised, with independent legal advice at arm’s length (see
the recent decision of Hoult v Hoult [2011] FamCA 1023), particularly in circumstances
where the agreement is advantageous to your client but disadvantageous to the other party.
Practitioners must also be careful to ensure that there is disclosure of all material matters
relating to the agreement and that the negotiations and actions of your client leading up to
the signing and execution of the agreement cannot be later construed as unconscionable
(see s 90K(1)(e)).
Parker v Parker [2012] FamCAFC 33
In Parker v Parker, the Full Court (constituted by Coleman, May and Murphy JJ) discussed s
90G and, in particular, s 90G(1A)(c), in the context of an amended Financial Agreement. As
with earlier Full Court authorities, there were three separate reasons for judgment. Coleman
J agreed with May J, yet provided different reasons for coming to the same conclusion as
her Honour. Murphy J provided separate reasons and came to a different conclusion than
that of the majority. As a consequence of the reasons of the majority, the appeal was
allowed, the orders of the judge at first instance set aside and the matter remitted for rehearing. The most significant point arising from this judgment is agreement in each of the
separate reasons regarding the application of the provisions of the Transitional Act to the
form of s 90G applicable to financial agreements made on or after 14 January 2004 to 3
January 2010. (See the form of s 90G applicable at the end of this summary).
Facts:
The husband appealed from orders made by Strickland J at first instance on 3 August 2010,
declaring that the financial agreement between the parties was not binding within the
meaning of s 90G. Two issues were said to be before the trial judge, namely whether the
parties, before signing the agreement, received independent legal advice required pursuant
to s 90G(1)(b), and, if not, whether it would it unjust and inequitable were the agreement not
binding on the parties pursuant to s 90G(1A)(c).
At trial, the Wife contended that the agreement was amended after she had first signed it
and received advice, and the certification of the advice, from her solicitor, and that her
solicitor was then required to provide further advice on the amendments, as stipulated in s
90G(1)(b).
The relevant dates relating to the formation of the agreement were as follows:





On 12 October 2004, the Husband’s solicitor forwarded to the wife’s solicitors a
proposed financial agreement. The Wife was advised that the agreement was unfair and
that she should not sign it. Despite this advice, the Wife signed the agreement.
On 5 November 2004, the Wife attended the office of her solicitors as paragraphs 1
and 11 of the agreement were amended by hand, and a Schedule C to the agreement
was included. The Wife signed the agreement, and her solicitor signed the certificate.
On 11 November 2004, the Husband’s solicitors made a further handwritten amendment
to clause 15 of the agreement. The Husband signed the agreement, and the Husband’s
solicitor signed the certificate. The document was then sent to the Wife, requesting that
the Wife initial the amendment to clause 15.
On 12 November 2004, the Wife and her solicitor initialled the amendment to clause 15.
The parties agreed that the date on which the agreement was made was 12 November
2004.
Strickland J, in his reasons at first instance, was satisfied that the Wife had received the
requisite advice as at 5 November 2003, but not on the effect or implications of the
amendments to clause 15 on 12 November 2004. Strickland J concluded that he could
not be satisfied that the Wife received the advice required pursuant to s 90G(1)(b) (or
that the husband had received that advice either). Strickland J further concluded that he
could not be satisfied that it would be unjust and inequitable if the financial agreement
were not binding on the parties pursuant to s 90G(1A)(c) as, in his Honour’s view, the
receipt of independent legal advice is an essential requirement and that it would be
unjust and inequitable for the financial agreement to be binding in circumstances where
the Wife was not fully advised of the implications of the amendments to clause 15.
The separate reasons for judgment of the Full Court
Coleman J:
Justice Coleman agreed, for different reasons to those of May J, that the appeal be
allowed and the matter remitted for re-hearing.
Coleman J reasoned that the provisions of ss 90G(1A), (1B) and (1C) are remedial or
beneficial and should be construed generously (at [5] to [17]), notwithstanding that the
proceedings before the trial judge could not be characterised as “enforcement
proceedings”. His Honour then turned to whether Strickland J’s application of s 90G(1A)
was erroneous. At [20] to [21] Coleman J reasoned that:
The conclusion reached by his Honour was, on the findings of fact he made, the
same as would have been reached prior to the introduction of sections 90G(1A),
(1B) and (1C), and appears the kind of outcome which those provisions were
intended to remedy. With respect to the trial Judge, the conclusions reached by him
involved a narrow interpretation of s 90G(1A)(c) of the Act which did not promote the
objectives of the legislation.
In the circumstances revealed by the evidence before the trial Judge, to refuse a
declaration pursuant to s 90G(1B) on the basis the trial Judge did was, in my opinion,
and with the greatest of respect to his Honour, only sustainable by adopting an
erroneously narrow interpretation of s 90G(1A)(c) in relation to the provision of legal
advice to the wife when she executed the financial agreement(s). A permissibly
generous interpretation of s 90G(1A) would not, in the circumstances of this case,
have led to the conclusion reached by the trial Judge, albeit other factors may have.
Coleman J concluded that the trial judge erred in adopting a narrow interpretation of
s 90G(1A)(c) and refusing a declaration pursuant to s 90G(1B).
May J:
Justice May agreed with Murphy J’s discussion of the transitional provisions in Senior v
Anderson (2011) FLC 93-470 (contrary to her Honour’s position in that decision) and as
a consequence at [123] her Honour concluded that Strickland J did not apply the correct
provisions of s 90G and erred to the extent that his Honour relied on the requirement for
certification of the financial agreement. However, at [68] (see also [130]), May J
concluded that it was open to Strickland J to be satisfied that the wife was not given
advice on the amendments to clause 15 of the agreement as required by s 90G(1)(b).
Her Honour then turned to the application of s 90G(1A) and concluded that Strickland J
should have considered the application of s 90G(1A). Accordingly, her Honour
concluded that the appeal should be allowed and remitted for re-hearing.
Murphy J:
Murphy J disagreed with the reasoning of the majority except in one respect. At [144],
[147] and [148] Murphy J identified that he agreed with Coleman J with respect to the
correct interpretation of s 90G(1B) and “enforcement proceedings” and stated that:
In my view, that argument, which ascribes a narrow interpretation to s 90G(1B), is
antithetical to the purpose of the [Transitional Act]. (See, in particular, the extracts
from the relevant Explanatory Memoranda at [37] of the trial judge’s reasons and at
[176] and [181] of Senior.)… I agree, with respect, with the reasons of Coleman J
and with his Honour’s analysis of the purpose and interpretation of s. 90G(1B) (at [5]
to [16]).
Murphy J referred to the transitional provisions and his judgment in Senior v Anderson
and at [163] to [165] stated that (emphasis added):
I hold to the views I expressed in Senior that, in respect of financial agreements
falling within the relevant timeframe (such as the instant financial agreement), the
net effect of the amendments is to render s 90G(1) in the form set out at [189] of
Senior and repeated by May J in her Honour’s Reasons. The effect is that the form of
s 90G(1)(b) to which s 90G(1A)(b) refers, and that which was applicable before his
Honour, is that outlined in Senior.
It will be noted that, as a result, two alternative forms of the paragraph might be
satisfied in order for an agreement to be compliant. The submissions made by the
parties to this appeal refer to only one.
However, the analysis just referred to does not answer a further question also directly
relevant to this appeal: does the retrospective application of s 90G(1A) apply
to s 90G(1)(b) (in the consolidated form as expressed in Senior) or does it also apply
to other sub-paragraphs of s 90G(1), and, particularly s 90G(1)(c)?
His Honour then discussed the transitional provisions and set out s 90G in full as
applicable to the agreement between the parties made on 12 November 2004.
Murphy J reasoned, from [170] onwards, that the primary judge erred in his application
of the transitional provisions to the agreement, and in finding that there was an
agreement between the parties on 5 November 2004. His Honour discussed the
reasoning in Senior, and reiterated that, for there to be a financial agreement, there must
be an agreement (s 4), and at [172] comments that:
…if there is no agreement – because, for example, there has been no offer accepted
by the offeree – there can be no “financial agreement” within the meaning of the Act
and, as a result, s 90G has no application.
His Honour also noted that any agreement found to exist at law must comply with either
s 90B, 90C or 90D to be a “financial agreement” to which s 90G applies. Accordingly, at
[178], Murphy J concluded that Strickland J erred in finding that there was an agreement
on 5 November 2004 as, in his Honour’s view, there was no agreement until 12
November 2004, and that there could be no variation prior to 12 November 2004, as,
prior to that date, there was no agreement. At [180] to [183] Murphy J explained his
reasoning as follows:
The document proffered by the husband on 11 November 2004, which included the
addition of a substantive term by him, constituted a counter-offer by the husband to
the offer made by the wife constituted by the signed document submitted to the
husband’s solicitors on her behalf on 8 November. The agreement was formed when
the wife accepted the husband’s amendment and communicated that acceptance to
the husband (through his solicitors). Thus, a “traditional analysis” points clearly to
there being no agreement until 12 November 2004.
Even if a “traditional analysis” is avoided, it is in my view clear that the “terms
precisely correspond” (see Hyatt, at 264) only on 12 November such that it is only on
that date that it can be said that the agreement is formed. Previous signed written
documents sent by each of the parties are but part of the negotiations for the
agreement.
That view of the instant agreement is reinforced by the nature of the agreement that
the parties clearly intended. There can be no doubt that the intention of each and
both of the parties was to enter a financial agreement pursuant to s 90C. Their
intention must, ipso facto, have been to enter an agreement that met the
requirements of that section. Thus, the agreement is, in my view, of a type
described as the third category of agreement in Masters v Cameron (1954) 91 CLR
353: “… the intention of the parties is not to make a concluded bargain at all, unless
and until they execute a formal contract”.
With great respect to his Honour, it is in my view not possible to conclude on the
evidence before his Honour that there was an agreement between the parties on 5
November. On that date, the wife responded to the document earlier tendered by the
husband by changing clauses 1 and 11 and adding Schedule C to that document.
The husband responded to that document in turn by adding sub-paragraph (b) to
clause 15.
Murphy J went on and, at [186], concluded that the finding made by Strickland J at [42]
was erroneous, as the trial judge did not apply s 90G(1A)(c) as amended by the
provisions of the Transitional Act. Importantly, Murphy J commented at [189] to [190]
that:
For the reasons earlier explained, s 90G(1A) does not assist a party who has not
complied with paragraph 90G(1)(c); in respect of an agreement made within the time
frame covered by Items 8 and 8A, s 90G(1A) can be called in aid only in respect of
non-compliance with paragraph 90G(1)(b). But, contrary to what was submitted to,
and held by, his Honour, and contrary to what was submitted on this appeal, it is only
non-compliance with subparagraph (b) in the “consolidated form” outlined in Senior at
[189] which can activate s 90G(1A).
In referring to the requirements of s 90G(1)(b), his Honour referred only to the
amended form resulting from the application of Item 8. As I have attempted to make
clear, in my view, Item 8A also has operation to that sub-paragraph so as to make
the form of s 90G(1)(b) different to that referred to by his Honour.
His Honour essentially concluded that s 90G(1A) is inapplicable in circumstances where
subsections 90G(1)(a), (c), or (d) have not been complied with, and only operates when
s 90G(1)(b) has not been complied with (again see the form of s 90G as applicable,
following this summary).
Notwithstanding the above conclusions, Murphy J commented that the errors identified
may not warrant appellate intervention. At [206] to [209], his Honour concluded that s
90G(1)(b) does not require the requisite advice to be given in one sitting. That advice
can be provided cumulatively. However, the advice must be the advice required by the
section and it must be given to the party prior to that party signing the agreement. At
[215] Murphy J commented in relation to certification that:
I am not persuaded that in determining, as required, the nature and extent of advice
actually given (as distinct from the fact of giving advice), particular weight should
have attached to the certificate of the legal practitioner required by s 90G or,
specifically, that his Honour erred in attaching to that evidence the weight that he did.
First, nothing in the section (or otherwise in Part VIIIA) suggests that this should be
so. Indeed, the necessity for a certificate from the solicitor being annexed to an
agreement was removed by the amendments to s 90G. Secondly, the issue joined
before the trial judge was not whether advice was given or whether advice was given
that fits a particular description; in issue was whether the advice that was actually
given was compliant with s 90G. The trial judge found, in my respectful view
correctly, that there was an insufficiency of evidence about the very matter that his
Honour was required to determine on this issue.
Accordingly, Murphy J concluded that Strickland J did not err in concluding that there
was insufficient evidence before his Honour in order to be satisfied that there was
compliance with s 90G(1)(b) and that, accordingly, Strickland J found that the agreement
was, due to non-compliance with s 90G(1)(b), not binding. His Honour went on to
discuss the application of s 90G(1A) and subsection (c), as follows, at [231] and [236]:
The plain words of s 90G(1A)(c) evidence a clear meaning. They envisage a broad
discretion vested in the Court in circumstances where the pre-conditions to the
exercise of that discretion prescribed otherwise in s 90G(1A)(a) to (e) are
established. Once that discretion is enlivened, nothing within the section suggests, in
terms, any restriction on the matters that might inform it.
…
Section 90G(1A) requires the Court to be satisfied that its preconditions have been
satisfied. If so, the Court is required to inquire into the facts and circumstances
surrounding the agreement so as to arrive at a conclusion as to whether those facts
and circumstances justify the Court exercising the discretion inherent in paragraph
(c) of the section. In doing so, the Court should not fetter that discretion by implying
restrictions – whether as to “technicality” or otherwise – not apparent in the terms of
the section.
Murphy J concluded that Strickland J was correct in finding that there was a lack of
evidence to inform an exercise of discretion pursuant to s 90G(1A)(c), and Strickland J’s
factual findings were not in error. Murphy J concluded, at [249], that:
A challenge on appeal to the exercise of the s 90G(1A) discretion faces the same
difficulties inherent in challenging any other discretionary judgment. The principles
pertaining are well known and have often been repeated in this Court. I am not
persuaded that his Honour took account of any irrelevant considerations or failed to
take account of relevant considerations. I consider that, on the evidence before him,
his Honour’s decision was plainly right.
Hoult v Hoult [2011] FamCA 1023
In the first decision of Hoult Murphy J determined that the advice given to the Wife prior
to entering into the financial agreement by her solicitor was less than satisfactory, that
there was not sufficient evidence that the advice complied with section 90G(1)(b) and as
a consequence the agreement was not binding pursuant to section 90G(1). The Wife
also argued that the agreement was obtained by fraud and that the Husband had
engaged in unconscionable conduct.
In relation to the evidence given by the solicitor who advised the Wife in relation to the
agreement Murphy J commented at paragraphs 43 to 46 that:
“The solicitor’s evidence was unsatisfactory in many respects. Not least of the
concerns about her evidence was her admission that her file contained no diary
notes, statements, correspondence or anything else in writing to which reference
could be made in respect of the advice given to the wife. With respect, this seems to
me extraordinary – not least because of the necessity dictated by s 90G for the
solicitor to provide a signed statement as to the giving of the required advice and the
litigation which has surrounded Part VIIIA of the Act (and s 90G in particular) and the
potential for consequences for the solicitor personally.
The solicitor said in the witness box that she intended to write a letter of advice to the
wife after the agreement had been signed by the husband (and, thus, both parties)
and the agreement had been returned to her. It is by no means clear to me why a
solicitor would do that; I would have thought there would be some anxiety to record
the advice given as soon as possible and, preferably, before the client signed the
agreement. The solicitor did not do so, she said, because she was waiting for a
signed copy of the agreement to come back to her from the husband’s solicitor and,
when it did not come “ I think time just got away from me”.
In respect of the absence of a relevant diary note, or other written memorandum
recording any advice, or what did or did not transpire during the consultation between
the wife and Ms K, Mr Page SC, who appears for the wife, referred to the judgment of
Denning LJ in Griffith v Evans [1953] 1 WLR 1424 at 1428 and to Dew v Richardson
[1999] QSC 192.
In the latter case, Chesterman J held, in a passage which, in my respectful view, has
resonance for the present case:
[10] [After referring to Denning LJ in Griffith] ...The judgment was a dissenting
one. The other Lord Justices merely noted that the solicitor’s evidence had
been accepted by the trial judge and, conventionally, decided the case in
accordance with the finding on credit. I cannot accept it is a principle of law
that wherever a solicitor and his client disagree about the terms of a retainer
(or advice) and the solicitor has not made a written note of the communication
the client’s evidence must be accepted. Findings of fact, especially those
based upon an opinion of the creditworthiness of witnesses, are to be made
from a careful and objective examination of the evidence adduced with
respect to those facts. To introduce the notion that in a given circumstance
facts must be found a certain way is to replace justice in the individual case
determined by the application of legal principle to idiosyncratic facts with the
arbitrariness of a determination made by reference to mindless ritual.
I approach the critical question on the basis that both client and solicitor,
plaintiff and defendant, have an equal right to be believed. Which of their
respective versions is to be accepted will depend upon the persuasiveness of
their evidence as judged by surrounding, objective circumstances. [emphasis
in original]
(See, too, remarks to similar effect by Katzmann J in Arnautovic & Sutherland
t/a Jirsch Sutherland & Co Arnautovic & Ors v Cvitanovic (as Trustee of the
Bankrupt Estate of Rosee) [2012] FCA 809 at [68].)”
In terms of what advice is required by section 90G(1)(b) Murphy J commented at
paragraphs 63 to 65 that:
“First, s 90G’s requirements must be seen against a crucial consideration. The
legislature has decided that the essence of the regime created by Part VIIIA of the
Act is that parties who are independently advised and receive appropriate advice
should, in the absence of fraud, unconscionability or other vitiating factors, be
perfectly free to bind themselves to an entirely unjust and inequitable agreement (in s
79 terms) that governs their future rights and operates as a bar to future property
(and/or maintenance) proceedings. In short, if the relevant pre-requisites are met,
and there is an absence of vitiating factors, the parties are perfectly free to make a
“bad bargain”.
The advice required by the section as to “the effect of the agreement on the rights of
[the] party” can be seen to be tolerably clear and, importantly, independent of the
terms of any particular agreement and the particular circumstances of the parties to
it. Plainly enough, as it seems to me, the advice must include substantive advice
about the effect of s 71A. It must also include advice about the effects of the terms of
the particular agreement.
But, at least in the case of a pre-nuptial (i.e. s 90B) agreement, it is by no means
clear what is contemplated by the requirement in s 90G that advice must be given as
to “the advantages or disadvantages of the agreement at the time that the agreement
was made”. That advice must, as it seems to me, depend, at least in part, upon the
myriad of circumstances which may (or may not) arise in the course of the parties’
married lives (including, indeed, whether they separate at all, in which case the terms
of the agreement providing for respective entitlements will not become operative).
How is the justice and equity (in s 79 terms) of the agreement to be determined at the
time it is signed if it does not become operative until separation occurs? If advice as
to “the advantages and disadvantages” is not to be given by reference to prospective
s 79 entitlements, what criteria or reference point or points are the measure of
“advantage” or “disadvantage”? The terms of an agreement might be seen to be
wholly just (or “advantageous”) if separation was to occur a week later and wholly
unjust (or disadvantageous) if separation was to occur 25 years later. The terms of
an agreement may be seen to be wholly just (or advantageous) if the parties have
modest assets at the time it is made but be seen to be wholly unjust (or
disadvantageous) should, 20 years later, one of the parties acquire very significant
wealth. Permutations are innumerable.”
His Honour further commented that any advice given must be independent and that a
certificate (now a statement) annexed to the agreement indicting that each party has
been given independent legal advice does not of itself substantiate that the advice was
given and his Honour noted at paragraphs 88, 93 to 94 that:
“I consider that the certificate is, without more, insufficient to satisfy the onus of
establishing that the relevant s 90G requirements have been met.
…
I do not consider that the certificate is of itself sufficient to remedy what I otherwise
regard as a significant deficiency in the evidence as to what advice, if any, was given,
and, if given, whether its contents would satisfy s 90G(1)(b).
The evidence as a whole, including the certificate, provides an insufficient evidentiary
foundation for a finding that advice was given about the advantages and
disadvantages of the agreement for the wife at the time that the agreement was
made.”
At paragraphs 100 to 104 Murphy J concluded that:
“I find – and it is not contended otherwise – that the wife was provided with the
signed statement (in this case appended to the agreement) by the solicitor from
whom she sought advice in respect of the agreement to the effect that advice as
required by the section had been given (s 90G(1)(c)).
Such advice as was given by the solicitor was independent and from a legal
practitioner within the meaning of the section (s 90G(1)(b)).
I am not satisfied that either advice as to rights under the agreement, or advice as to
the advantages and disadvantages of the agreement was given (or that, pursuant to
the alternatively applicable sub-section, that advice was given as to whether it was
prudent for the wife to enter the agreement or whether its terms were fair and
reasonable).
In that respect, the certificate signed by the solicitor does not, of itself, provide a
sufficient evidentiary foundation so as to reach any of the conclusions just referred to.
The evidence as a whole, including the certificate, does not provide a sufficient
evidentiary foundation for the requisite findings just referred to.
I find, therefore, that the agreement is not binding within the meaning of s 90G of the
Act.”
Murphy J also discussed the application of s 90K and the allegations of fraud and
unconscionable conduct in the execution of the agreement, although those matters did
not ground any finding or determination to set the agreement aside.
Hoult v Hoult [2012] FamCA 367
In the subsequent judgment in this matter Murphy J discussed the applicability of section
90G(1A) to the agreement and held that, notwithstanding his previous reasons, it would
be unjust and inequitable if the parties were not bound to the agreement. His Honour
reasoned at paragraphs 52 to 54 and 57 to 58 that the question posed by section
90G(1A) was as follows:
“…in my view, the question inherent in the exercise of the s 90G(1A)(c) discretion is
whether, in the particular facts and circumstances of this case, it is unjust or
inequitable for the parties to have their Part VIII rights excluded to the extent dealt
with in the agreement by being held to what they bargained for.
The structure of Part VIIIA of the Act, and s 90G itself, suggests that the preservation
of the parties’ bargain into which the parties freely entered is to be given significant
weight. For example, s 90G(1)(c) uses the negative; the paragraph does not require
the Court to be satisfied that it would be unjust and inequitable if the agreement was
binding but rather if it is not binding..
It is important to observe that, whilst s 90G(1) demands a number of requirements, it
is only one of those (that the agreement be signed by all parties) that precludes the
agreement ultimately being held binding notwithstanding failure to meet the other
mandatory requirements
…
It seems to me that the enquiry required of s 90G(1A)(c) is a wide-ranging one that
might include considerations such as:
o
The facts and circumstances surrounding the particular s 90G
requirement not being met;
o
What the parties themselves said and did, if anything, so as to render
the agreement not binding;
o
The circumstances within which the parties bargain was concluded;
o
The length of time between the signing of the agreement and the
decision as to whether the parties are to be held to it;
o
What the parties said and did in reliance upon the agreement being
binding subsequent to the signing of the agreement;
o
Whether the terms of the bargain itself offend ordinary notions of
fairness or plainly fall markedly outside any reasonable broad
assessment of the s 79 discretion;
The relevant s 90G(1) requirement not complied with in this case is the giving of the
advice which the section requires. This is an important matter and I accord it
significant weight. This requirement is fundamental to the free and informed consent
that should attend the bargain. I also give that aspect significant weight. But, I also
give weight in that respect, to my findings that the agreement was not vitiated by
fraud, undue influence or unconscionable conduct.”
Ruane v Bachmann-Ruane [2012] FamCA 369
In Ruane Murphy J considered the question of whether the Wife could seek damages for
negligence and or breach of contract or breach of fiduciary duty against the solicitors
and counsel who advised her with respect to the agreement and whether the
Family Court had accrued jurisdiction to hear the claim as part of a single justiciable
controversy, namely the section 79 proceedings. Murphy J concluded that the Court
could hear the claim.
At paragraphs 23, 29, 31 and 33 to 34 his Honour stated in relation to the relevant
authorities on accrued jurisdiction that:
“In my respectful view, a suggestion that the exercise of accrued jurisdiction by
this court is discretionary, save, perhaps, in rare or extraordinary circumstances,
is not supported by the weight of authority.
…
As has been seen, to the extent that this passage [from Warby] (or the decision
more generally) is to be interpreted as being indicative of the Court possessing a
broad discretion as to whether to exercise accrued jurisdiction, in my respectful
view, the weight of authority is now to the contrary. For present purposes,
however, it is the last of those “factors” which is said to add particular weight to
the argument by the respondents (together with what was said at paragraph [70]
of that decision).
…
I am not persuaded that the decision of the Full Court in Warby &Warby (2002) FLC
93-091 is to be interpreted in that manner. In my view, such an interpretation admits
of a conclusion that the Full Court confuses jurisdiction and power; a conclusion I am
not prepared to draw. As the High Court has pointed out, for example in Harris v
Caladine (1991) 172 CLR 84 care should be taken not to confuse jurisdiction with
power. For example, Toohey J held:
The distinction between jurisdiction and power is often blurred, particularly in
the context of “inherent jurisdiction”. But the distinction may at times be
important. Jurisdiction is the authority which a court has to decide the range
of matters that can be litigated before it; in the exercise of that jurisdiction a
court has powers expressly or impliedly conferred by the legislation governing
the court and “such powers as are incidental and necessary to the exercise of
the powers so conferred”.
. . .
Brereton J in Valceski & Valceski (2007) FLC 93-312 at [52], [54] held:
It has also been suggested that, if the Family Court has an accrued
jurisdiction it is a narrow one. With respect, it is difficult to understand what
this means. The scope of the accrued jurisdiction depends upon the scope of
the single justiciable controversy. If the same sub-stratum of facts gives rise to
a wide range of disputes, some Federal and some not, they are all within the
accrued jurisdiction…
…
… if a court has jurisdiction (by way of accrued jurisdiction) in a non-federal
aspect of a matter, that carries with it the power to grant the appropriate
remedies given by state law in that matter; one does not have to find the
remedy within the Family Law Act (Cth)…And even if the power to grant
appropriate remedies had to be found in the Court’s own governing statute,
the Family Law Act (Cth), s 34, confers ample power to grant all appropriate
remedies in a matter in which the Court has jurisdiction.
I am not persuaded that, as a matter of principle, it is correct to classify the Court’s
accrued jurisdiction as “narrow” or, indeed, to apply any other such qualification.
This Court has the accrued jurisdiction which it has in any “matter” by reference to
the substratum of facts underlying the issues joined between the parties such that, by
reference to those facts and issues, there can be seen to be a “single justiciable
controversy”.”
At paragraph 41 Murphy J cited Brereton J in Valceski and noted that once the Court was
vested with jurisdiction of a matter it extended to the whole of the justiciable controversy and
at paragraph 44 noted that there will be no single justiciable controversy where the
substratum of facts supports dispirit or separate, distinct and unrelated claims.
From paragraphs 65 to 67 Murphy J reasoned that:
“I do not accept that the facts and circumstances pertaining to the issue of the
damages potentially awarded to the “aggrieved party” (here the wife) are, insofar
as they coincide with the s 79 claim, related only to the issue of whether those
damages are “property” for the purposes of that section. Further, I reject the
submission that the damages sought by the wife against the third respondent “are
personal to her and will not lead to a further adjustment of property rights
between her and the husband”. The ascertainment of the “property of the parties
or either of them” is but a part of what is required of the Court by s 79. For
example, the Court is also mandatorily required to consider s 79(4)(e), that is,
“the matters referred to in s 75(2) so far as they are relevant”. The receipt, and
the amount, of damages paid or payable to the wife from a party not the husband
is, in my view, directly relevant to s 79(4)(e).
The Court is obliged to consider the relevant s 75(2) matters consequent upon an
assessment of contributions. Once that assessment of contributions is made, it
falls to consider, relevantly, for example, “the income, property and financial
resources of each of the parties… [section 75(2)(b)]” and, “any [other] fact or
circumstance…” [section 75(2)(o)]. In the absence of a “potential or crystallised”
amount of damages, the wife needs to meet her s 79 obligation as assessed from
her own assets and resources (i.e. without recourse to any damages). The
availability of funds through an award of damages, both generally and as a
means of wholly or partially meeting any s 79 order, is, as it seems to me,
strongly arguable as an important and directly relevant s 75(2)(o) consideration.
So, too, in my view, is the extent, if any, to which the parties may have altered
their position in reliance upon the financial agreement being enforceable – and
binding. Those facts and circumstances might be relevant not only to s 75(2)(o),
but also to an earlier part of the s 79 inquiry. For example, the inquiry might
embrace a consideration of the manner in which the nature, form and
characteristics of contributions (of all types) that have (or have not) been made
as a result of the assumption that the agreement would govern any future
property and/or maintenance entitlement of the other party. Again, the position
that existed with respect to the precursors of financial agreements (i.e. s 87
agreements) needs to be contrasted. In the case of the latter type of agreement,
parties knew from at, or shortly after, the agreement was signed whether it could
be relied upon because those agreements required Court approval which
involved a Court decision that their terms were “proper”.
At paragraphs 72 to 76 his Honour concluded that:
“In my view, the court in this case is seized of a “matter” in which,
“notwithstanding that the facts upon which the claims depend do not wholly
coincide”, those same facts and the issues to which they relate are sufficiently
interlinked or intertwined such that it can be said that there is a common
substratum of facts relevant to the issues joined.
In my view, notwithstanding the differences in the “causes of action”, there can be
said to be “a single justiciable controversy” involving those parties.
Accordingly, in my judgment, this court has jurisdiction to hear and determine
those claims.
There are no particular or extraordinary circumstances pertaining to this case
such that it can be said that this court is permitted to, or should, decline
jurisdiction.
Accordingly, in my judgment, this court should proceed to hear and determine the
claims joined between the parties.”
Conclusion
From the decision in Parker v Parker and the decision of the Full Court in Senior v
Anderson, it is apparent that the form of s 90G to be applied to agreements must be
determined by properly applying the provisions of the Transitional Act (see Annexure A).
Further, pursuant to Hoult practitioners must take care to establish evidence that their
client has been properly advised on the matters set out in section 90G(1)(b) prior to their
client executing the agreement to establish that the advice was provided consistent with
the statement annexed to the agreement and in accordance with the Act. Another
reason for practitioners to ensure that proper file notes and written advice is to be
provided to clients entering into financial agreements is illustrated in Ruane. Although
the case law is progressing and the Full Court has not yet determined whether the Court
has accrued jurisdiction in this regard proper file notes and written advices may avoid a
potential negligence claim in the Family Law Courts or the State Courts in the event that
the agreement is determined to be not binding at a later date due to a lack of compliance
with the provisions of the Act.
ANNEXURE A
FOR FINANCIAL AGREEMENTS MADE PRIOR TO, DURING OR AFTER DIVORCE
Section 90G as currently in force, and as applicable to Financial Agreements made on
or after 4 January 2010
(1)
Subject to subsection (1A), a financial agreement is binding on the parties to the
agreement if, and only if:
(a)
the agreement is signed by all parties; and
(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
(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
(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; and
(d)
the agreement has not been terminated and has not been set aside by a
court.
Note: For the manner in which the contents of a financial agreement may be
proved, see section 48 of the Evidence Act 1995.
(1A)
A financial agreement is binding on the parties to the agreement if:
(a)
the agreement is signed by all parties; and
(b)
one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to
the agreement; and
(c)
a court is satisfied that it would be unjust and inequitable if the agreement
were not binding on the spouse parties to the agreement (disregarding any
changes in circumstances from the time the agreement was made); and
(d)
the court makes an order under subsection (1B) declaring that the
agreement is binding on the parties to the agreement; and (e) the agreement
has not been terminated and has not been set aside by a court.
(1B)
For the purposes of paragraph (1A)(d), a court may make an order declaring that a
financial agreement is binding on the parties to the agreement, upon
application (the enforcement application) by a spouse party seeking to enforce the
agreement.
(1C)
To avoid doubt, section 90KA applies in relation to the enforcement application.
(2)
A court may make such orders for the enforcement of a financial agreement that is
binding on the parties to the agreement as it thinks necessary.
Section 90G as applicable to Financial Agreements made on or after 14 January
2004 to 3 January 2010
(1)
Subject to subsection (1A), a financial agreement is binding on the parties to the
agreement if, and only if:
(a)
the agreement is signed by all parties; and
(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;
(1A)
(1B)
(1C)
Or (s 90G(1)(b) is also satisfied per item 8A(2)) if before signing the agreement,
the spouse party was provided with independent legal advice from a legal
practitioner about:
(a) the effect of the agreement on the rights of that party; and
(b) whether or not, at the time when the advice was provided, it was to the
advantage, financially or otherwise, of that party to make the agreement;
and
(c) whether or not, at that time, it was prudent for that party to make the
agreement; and
(d) whether or not, at that time and in the light of such circumstances as were,
at that time, reasonably foreseeable, the provisions of the agreement were
fair and reasonable.
and
(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) or as italicised above (per item 8A(3)) was
provided to that party (whether or not the statement is annexed to the
agreement); and
(d)
the agreement has not been terminated and has not been set aside by a
court.
A financial agreement is binding on the parties to the agreement if:
(a)
the agreement is signed by all parties; and
(b)
paragraph (1)(b) is not satisfied in relation to the agreement; and
(c)
a court is satisfied that it would be unjust and inequitable if the agreement
were not binding on the spouse parties to the agreement (disregarding any
changes in circumstances from the time the agreement was made); and
(d)
the court makes an order under subsection (1B) declaring that the agreement
is binding on the parties to the agreement; and
(e)
the agreement has not been terminated and has not been set aside by a
court.
For the purposes of paragraph (1A)(d), a court may make an order declaring that a
financial agreement is binding on the parties to the agreement, upon application (the
enforcement application) by a spouse party seeking to enforce the agreement.
To avoid doubt, section 90KA applies in relation to the enforcement
application.
Section 90G as applicable to Financial Agreements made on or after 27 December
2000 to 13 January 2004
(1)
Subject to subsection (1A), a financial agreement is binding on the parties to the
agreement if, and only if:
(a)
the agreement is signed by all parties; and
(b)
before signing the agreement, each spouse party was provided with
independent legal advice from a legal practitioner about:
(d)
(i)
the effect of the agreement on the rights of that party; and
(ii)
whether or not, at the time when the advice was provided, it was to the
advantage, financially or otherwise, of that party to make the
agreement; and
(iii)
whether or not, at that time, it was prudent for that party to make the
agreement; and
(iv)
whether or not, at that time and in the light of such circumstances as
were, at that time, reasonably foreseeable, the provisions of the
agreement were fair and reasonable; and
the agreement has not been terminated and has not been set aside by a court.
(1A) A financial agreement is binding on the parties to the agreement if:
(a)
the agreement is signed by all parties; and
(b)
paragraph (1)(b) is not satisfied in relation to the agreement; and
(c)
a court is satisfied that it would be unjust and inequitable if the agreement were
not binding on the spouse parties to the agreement (disregarding any changes
in circumstances from the time the agreement was made); and
(d)
the court makes an order under subsection (1B) declaring that the agreement
is binding on the parties to the agreement; and
(e)
the agreement has not been terminated and has not been set aside by a court.
(1B)
For the purposes of paragraph (1A)(d), a court may make an order declaring that a
financial agreement is binding on the parties to the agreement, upon application (the
enforcement application) by a spouse party seeking to enforce the agreement.
(1C)
To avoid doubt,
application.
section
90KA
applies
in
relation
to
the
enforcement