Black & Black

The appeal in Black & Black involved a dispute over a financial agreement entered into by the parties during their 18-month marriage. The husband sought to have the agreement set aside, arguing it did not meet the statutory requirements for a binding financial agreement under section 90G. The trial judge had held the agreement was binding, but the husband appealed this decision. The court was required to determine whether the financial agreement complied with the statutory requirements under section 90G, and if a strict or purposive approach should be applied in interpreting these requirements. The court also had to consider the appropriate approach to interpreting legislation that ousts the court’s jurisdiction to make adjustive orders.

The court held that the financial agreement did not meet the requirements of section 90G(1)(b) because it failed to include a statement that the parties had received independent legal advice on all matters set out in the then section 90G(1)(b). The court emphasised that a strict interpretive approach and strict compliance requirements should be applied where legislation ousts the court’s jurisdiction to make adjustive orders under section 79. Consequently, the appeal was allowed, the financial agreement was set aside, and the parties' claims for alteration of property interests were remitted for retrial. The court also granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981.