Clowes & Konig

In the Federal Circuit and Family Court of Australia, the applicant, Ms Clowes, sought to challenge a financial agreement entered into with the respondent, Mr Konig, in 2005. The agreement was executed pursuant to the Property (Relationships) Act 1984 (NSW) and governed the financial arrangements between the parties during their de facto relationship. The applicant contended that the agreement was not binding or should be set aside on various grounds, including lack of independent legal advice, fraud, duress, undue influence, unconscionable conduct, and uncertainty. The court had to determine the validity of the financial agreement and whether it would be just and equitable to adjust the property interests of the parties.

The court found that the financial agreement was valid and binding, and it excluded all property of the parties, including their superannuation entitlements, from an exercise of jurisdiction inconsistent with the agreement. The court considered whether it would be just and equitable to adjust the property interests of the parties despite the binding agreement. Upon consideration of the relevant provisions of the Family Law Act 1975 (Cth), the court found that it would not be just and equitable to alter the parties' existing property interests.

The court dismissed the applicant's application and declared that the financial agreement is a binding financial agreement within the meaning of Pt VIIIAB of the Family Law Act 1975 (Cth). The court ordered the parties to implement the financial agreement and to list their jointly owned property for sale, with specific provisions for the sale process and division of proceeds. The court also reserved the costs of each party for 28 days from the date of the orders.

This decision highlights the importance of properly executed financial agreements in de facto relationships and the court's reluctance to interfere with such agreements unless there are exceptional circumstances. The court found that the applicant had not demonstrated any grounds to set aside the financial agreement, and the terms of the agreement should be upheld to ensure certainty and fairness between the parties.