DAILY & DAILY

In the matter of DAILY & DAILY, the wife sought a declaration that a financial agreement entered into by the parties in 2005 was not binding, or alternatively, that it be set aside pursuant to s 90K of the *Family Law Act 1975* (Cth). The husband sought to have the agreement declared binding and enforced under s 90KA of the Act.

The court was required to determine whether the financial agreement was binding, considering handwritten amendments made after the wife had signed, which were subsequently initialled by both parties and their respective solicitors. Key issues included whether the requisite independent legal advice was provided to the wife, and whether it would be unjust and inequitable to uphold the agreement. The court also considered whether there had been a material change in circumstances regarding the care of the parties' two children, born after the marriage, which would result in hardship if the agreement were not set aside, particularly given the wife's cessation of fulltime employment to become the primary caregiver.

Berman J found that the legal advice provided to the wife did not satisfy the legislative requirements for independent legal advice under the Act. Furthermore, the court determined that it would be unjust and inequitable if the agreement were to remain binding on the parties, especially in light of the significant changes in their personal and financial circumstances since its execution, including the wife's role as primary caregiver.

Consequently, the court ordered that the financial agreement entered into between the parties on 21 July 2005 be set aside pursuant to s 90K(1)(d) of the *Family Law Act 1975* (Cth).