BINDING FINANCIAL AGREEMENTS Paul Doolan May 2011

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BINDING FINANCIAL AGREEMENTS Paul Doolan May 2011

Black & Black Amendments l Retrospective legislative response l Commenced 4 January 2010

Section 90 G(1)(a) A financial agreement is binding on the parties if, and only if: (a) The agreement is signed by all parties; and

Section 90 G(1)(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 90 G(1)(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 90 G(1)(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” s 90 G(1 A) – enforcement application

Kostres & Kostres [2009] Fam CAFC 222 l l Full Court of Family Court Problems of drafting agreements and contractual certainty

Wallace & Stelzer [2011] Fam. CA 54 l l l Appeal pending to Full Court Constitutional validity of 2010 amendments Equitable rectification

Balzia & Covich [2009] Fam CA 1357 l l Onus of Proof Rectification

Senior & Anderson [2010] Fam CA 601 l l Document mistakenly drawn pursuant to s 90 C not s 90 D Rectification

Cardwell v Hansell; unreported, Altobelli FM l l s 90 E Release of maintenance rights

Parker & Parker [2010] Fam CA 664 l l 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? l

l 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?

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

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

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

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

l 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?

l 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?

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

l Do you think the changes to s 90 G 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.

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