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Pre Nuptial Agreements and Binding Financial Agreements

Prenuptial agreements or Binding Financial Agreements as they are referred to under the Family Law Act 1975 must have been completed in strict compliance with the Legislation in order for them to withstand a challenge to their validity at a later time. Ignore these important requirements and you run the risk of having the court set the agreement aside.

The court in Blackmore and Webber, a 2009 decision, was asked to examine a prenuptial agreement entered into between an Australian resident and his Thai wife. The parties to the marriage had entered into a prenuptial agreement and married 3 days later. At the time the wife executed the agreement she was pregnant and had limited English. The parties separated 2 years after the marriage. The court set the agreement aside on the grounds of fraud due to the husband having failed to disclose the true value of his pension. The court also found that there was duress of the wife in circumstances where;

The husband had presented the wife with the prenuptial agreement only 5 days before the wedding;
The husband had told the wife that if she did not sign the agreement the wedding would be called off;
The wife was 4 to 5 months pregnant with the husband’s child at the time she was presented with the agreement;
The wife’s Visa was due to expire had the wedding not proceeded.

The court also found that the husbands conduct was unconscionable in that the wife was labouring under a “special disability” by reason of her lack of English skills. Accordingly, the court found the agreement should be set aside and that it was not binding. In these circumstances, the property matters between the parties were dealt with in accordance with the Family Law Act and deprive the parties from the ability to come up with their own arrangements.

For more information regarding prenuptial agreements and binding financial agreements please contact Kathy Matry for a no obligation chat.

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