Kapsalis and Kapsalis
[2017] FamCA 89
•23 February 2017
FAMILY COURT OF AUSTRALIA
| KAPSALIS & KAPSALIS | [2017] FamCA 89 |
| FAMILY LAW – FINANCIAL AGREEMENT – Application by the wife to set aside a prenuptial agreement – Where the wife alleges there was fraudulent non-disclosure, a change in circumstances arising from the birth of the children, and unconscionable conduct on the part of the husband – Where having children of itself is not a change in circumstances where it is anticipated in the agreement – Where the signing of the agreement days prior to the wedding was found not to be unconscionable – Where the wife has failed to establish a basis for the setting aside of the agreement under s 90K – Where the wife’s application is dismissed. |
| Family Law Act 1975 (Cth), ss 74(3), 75(3), 90B, 90K, 90K(1)(a), 90K(1)(d), 90K(1)(e) |
| Kennedy & Thorne [2016] FamCAFC 189 |
| APPLICANT: | Ms Kapsalis |
| RESPONDENT: | Mr Kapsalis |
| FILE NUMBER: | SYC | 4176 | of | 2014 |
| DATE DELIVERED: | 23 February 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 16 February 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Friedlander |
| SOLICITOR FOR THE APPLICANT: | Hartmann & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Stapleton |
| SOLICITOR FOR THE RESPONDENT: | Meredith Saayman Lawyers |
Orders
IT IS ORDERED
That the application of the wife to set aside the Financial Agreement, entered into between the parties on 4 May 2005, be dismissed.
That all outstanding applications be referred to a Registrar for directions.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kapsalis & Kapsalis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4176 of 2014
| Ms Kapsalis |
Applicant
And
| Mr Kapsalis |
Respondent
REASONS FOR JUDGMENT
Ms Kapsalis (“the wife”) and Mr Kapsalis (“the husband”) commenced cohabitation in late 2003.
On 19 March 2004, the parties signed a Cohabitation Agreement. The relevance of that agreement will be discussed later in the context of alleged non‑disclosure by the husband.
On 4 May 2005 they entered into an agreement titled “Prenuptial Agreement” (“the Agreement”) pursuant to s 90B of the Family Law Act 1975 (Cth) (“the Act”). The effect of the Agreement was that each party would retain the property in his or her possession at the time of the marriage.
They married in 2005.
There are two children of their marriage, B aged 7 and C aged 5.
They separated in November 2013.
The wife now asks the Court to set aside the Agreement. That application is opposed by the husband.
THE AGREEMENT
There was no issue that the Agreement was a binding financial agreement.
It is convenient to set out the paragraphs of the Agreement which, in the wife’s case, ground her assertions.
In Clause 2, the Agreement relevantly states:
Apart from the Property [previously defined as the husband’s house], [the husband] is also a director of [D Pty Ltd] and owns shares in many corporations including half share in [D Pty Ltd] (the other director and Shareholder is [Mr E Kapsalis]) and motor cars. …
At Clause 6, the Agreement states:
The parties intend this agreement to be binding even if a child (or children) is born to the parties, or is mutually accepted into their household. If a child (or children) enters the relationship, the parties intend to make separate arrangements for child maintenance both during and if necessary after the termination of their relationship.
THE LAW
The circumstances in which a financial agreement can be set aside are set out in s 90K of the Act which is reproduced below.
FAMILY LAW ACT 1975 - SECT 90K
Circumstances in which court may set aside a financial agreement or termination agreement
(1) A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that:
(a) the agreement was obtained by fraud (including non-disclosure of a material matter); or
(aa) a party to the agreement entered into the agreement:
(i) for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or
(ii) with reckless disregard of the interests of a creditor or creditors of the party; or
(ab) a party (the agreement party ) to the agreement entered into the agreement:
(i) for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a de facto relationship with a spouse party; or
(ii) for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 90SM, or a declaration under section 90SL, in relation to the de facto relationship; or
(iii) with reckless disregard of those interests of that other person; or
(b) the agreement is void, voidable or unenforceable; or
(c) in the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out; or
(d) since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or
(e) in respect of the making of a financial agreement--a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or
(f) a payment flag is operating under Part VIIIB on a superannuation interest covered by the agreement and there is no reasonable likelihood that the operation of the flag will be terminated by a flag lifting agreement under that Part; or
(g) the agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of Part VIIIB.
(1A) …
(2) For the purposes of paragraph (1)(d), a person has caring responsibility for a child if:
(a) the person is a parent of the child with whom the child lives; or
(b) a parenting order provides that:
(i) the child is to live with the person; or
(ii) the person has parental responsibility for the child.
Counsel for the wife relied on s 90K(1)(a), s 90K(1)(d) and s 90K(1)(e) of the Act.
In relation to each ground, counsel was asked to identify the evidence upon which the wife relied.
SECTION 90K(1)(a)
In relation to this ground, the wife relied upon the terms of the Agreement, specifically Clause 2.
She also relied upon paragraph 5 of her affidavit sworn 21 August 2015 where she deposed:
I knew very little about the husband’s business or assets before we entered into the Cohabitation Agreement and although I knew somewhat more before entering the Prenuptial Agreement, I did not know much, e.g. I did not know the number of staff the business had, I had not seen his office, but I probably knew before entering into the Prenuptial Agreement that he had [a lot of business] with his brother ….
The Cohabitation Agreement, which was executed by the parties on 19 March 2004, contained the following clause:
Apart from the Property [defined as the husband’s house], [the husband] owns shares in many corporations including [D] Pty Ltd and motor cars.
In cross-examination the wife agreed that she had every opportunity to ask the husband for information about his assets before she signed the Agreement but that she had made no enquiries of him.
She agreed that she understood, when she signed the Agreement, that she would receive nothing if she and the husband separated.
She said, in cross-examination, that had she been told that the husband’s assets were worth twenty million dollars rather than three or four million dollars, she would still have entered into the Agreement.
Thus, two questions arise. Firstly, has there been a failure by the husband to disclose? Secondly, was the wife’s entering into the Agreement obtained by that failure?
If the answer to either of those questions is “no”, then it is not necessary to consider whether a failure to disclose must be fraudulent, in the sense of intending to deceive.
In Kennedy & Thorne [2016] FamCAFC 189, the Full Court (Strickland, Aldridge & Cronin JJ) said, at paragraph 104 and following:
The wife seeks to transpose the obligation to make full and frank disclosure under Part VIII of the Act to the entering into of financial agreements under Part VIIIA. However, this is erroneous given the clear difference between the two parts. As the trustees say in their written submission:
22.…The obligation of disclosure under Part VIII occurs in a context where a court is required to make findings about the assets, liabilities and financial resources of the parties, and where the court is also required to be satisfied that it is just and equitable to make orders.
23. By contrast, a financial agreement is a private contract between parties into which there is no express statutory requirement that disclosure be made or valuations be obtained; and there is no judicial scrutiny relating to their formation. A party may enter an agreement, and such agreement is capable of being binding, with little or no knowledge of the other party’s financial position. That is, consistent with the doctrine of freedom of contract, a party may enter into a bargain without undertaking due diligence if they choose to do so, just as they may enter a bad bargain in the face of the proper due diligence. The fact that a financial agreement results in a difference outcome to that which may have been awarded under s 79 and s 75 is not relevant to whether the agreement should be set aside [(Hoult & Hoult)].
(Footnotes omitted)
The safeguard, if you like, where financial agreements are entered into, is that if there is thought to be inadequate disclosure, then the legal advice given to the other party can be, for example, not to enter into the agreement, or even, where there is no necessary suggestion of non‑disclosure, to only sign after receipt of specific financial information. Further, if it subsequently transpires that the agreement was obtained by fraud, including non-disclosure of a material fact, the Act provides a remedy in the form of s 90K(1)(a).
The wife had been told by the husband that he owned a house and corporate assets. She had signed a Cohabitation Agreement in 2004 that provided she would receive nothing from those assets if they separated. She chose then, and before signing the Agreement in 2005, to make no enquiry as to the value of the husband’s assets.
More relevantly here, it was clear from the wife’s evidence in cross‑examination, that nothing in the husband’s disclosure of his assets induced her to enter into the Agreement. To use the words of the section, the wife’s entering into the Agreement was not “obtained” by the husband’s representations about his asset position. She was determined to enter into the Agreement no matter what his asset position was.
It is not necessary to consider the third question, that is, whether a failure to disclose is fraudulent.
The ground is not made out.
SECTION 90K(1)(d)
In relation to this ground the wife relied upon the fact that there is no mention of children in the Agreement. Counsel for the wife withdrew that submission when the provisions of Clause 6 of the Agreement were brought to his attention.
She relied on the admission by the husband that she is the children’s primary carer and the evidence in her affidavit sworn 16 February 2017 as to the child support paid by the husband.
She also relied on those paragraphs of her affidavits which set out her financial position and which, she asserted, demonstrated hardship.
The interpretation of s 90K(1)(d) of the Act was considered by the Full Court in Fewster & Drake [2016] FamCAFC 214.
At paragraph 46 and following, their Honours (Strickland, Aldridge & Kent JJ) said:
Before turning to the grounds of appeal themselves we wish to make some general observations about s 90K(1)(d), which provides:
(1)A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that:
…
(d)since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside…
It is clear enough that s 90K(1)(d) follows the form of s 79A(1)(d) of the Act, which states:
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
…
(d)in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order…
There is, however, a crucial difference. Under s 79A(1)(d) the change in circumstances must be “of an exceptional nature” for the section to apply, whereas the change in circumstances under s 90K(1)(d) must be “material”. The threshold under s 90K(1)(d) would seem to be lower than that which applies to s 79A(1)(d).
Their Honours then turned to the proper construction of the section. They held, at paragraph 50, that the words “as a result of that change” are critical:
Those words provide a necessary link between the changing circumstances and the hardship. According to the clear terms of the subsection, the hardship must result from the material change in circumstances, and not from some other cause.
At paragraph 53, their Honours considered the meaning of “material”:
In Sola Optical Australia Proprietary Limited v Mills (1987) 163 CLR 628 the High Court had to consider the phrase “facts material to the plaintiff’s case” that appeared in s 48 of the Limitation of Actions Act 1936 (SA). What the Court said there is relevant to the construction of the present section. The Court said at 636–637:
A fact is material to the plaintiff's case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case. The Shorter Oxford English Dictionary defines the word “material”, inter alia, to mean “Of such significance as to be likely to influence the determination of a cause”. Although a definition attributed to the sixteenth century, in our opinion it provides an apt guide to the intention of the legislature in choosing to refer, without any elaboration, to “facts material to the plaintiff’s case”.
At paragraphs 60 and following, their Honours considered the question “Can the birth of a child, of itself, engage s 90K(1)(d)?” They concluded:
The husband submitted that the birth of a child, of itself, cannot be a material change relating to the care, development and welfare of a child. Rather, he submits the material change in circumstance must be directed to the care, welfare and development of a child and not to his or her birth. This is said to be so because the ordinary expectation of married life is the birth of a child.
It may immediately be observed that if the birth of a child is within the ordinary realms of expectation of a marriage so is the care, welfare and development of a child.
The birth of a child leads inexorably to his or her care, development and welfare. We do not see why a birth cannot be a material change in circumstances for the purpose of s 90K(1)(d). Whether it in fact is such a change will depend on all of the circumstances.
And at paragraph 79:
As we have identified earlier, in order for a binding financial agreement to be set aside under s 90K(1)(d) it is essential that the link between the changed circumstances arising from the care, welfare and development of a child and the hardship suffered by the child or the person with caring responsibility be established. The hardship must result from the change in circumstances for the requirements of the section to be satisfied.
Two questions arise. Firstly, has there been a material change in circumstances “arising from the care welfare and development of a child”? Secondly, has the wife suffered hardship because of that change in circumstances?
In relation to the first question, counsel for the wife submitted that the mere circumstances of the birth of the children are a change in circumstances since the making of the Agreement.
I do not accept that submission. The Agreement itself contemplated that the parties would have children. As the Full Court observed in Fewster, the birth of a child is within the ordinary realms of expectation of a marriage and so is the care, welfare and development of a child.
I accept, as the Full Court stated in Fewster, that there could be circumstances where, after an Agreement is signed, a child suffers a life changing illness or injury, and that, as a result of being the carer of that child, a parent suffers hardship. I do not accept that the section is enlivened only because a child is born when the Agreement contemplates such an event.
In relation to the second question, counsel for the husband submits that, if the wife suffers hardship (which is not conceded), that hardship arises, not because of the birth of the children, but because of the separation. I accept that submission.
The wife does not assert that she suffered any hardship after the birth of the children and up to the date of separation. The hardship which she now asserts arises out of the fact that she no longer lives in the house owned by the husband, that she has to pay rent, and that she no longer has the use of the husband’s income. Those are not matters arising out of changed circumstances relating to the children but rather out of changed circumstances relating to the marriage and separation.
Counsel for the husband submits that the wife has not established, in any event, that she suffers hardship.
In Fewster, turning to the question of the correct interpretation of “hardship” within s 90K(1)(d) their Honours said at paragraph 65:
The husband correctly submits that the words “as a result of the change” indicate that the relevant hardship with which the section is concerned is the hardship which is caused by the change in circumstances. It is the changed circumstances which must give rise to the hardship, and not the agreement itself. It is to be recalled that, subject to compliance with the statutory requirements, people are free to enter such binding financial agreements as they see fit. There is no statutory provision which enables a binding financial agreement to be set aside merely because it is unfair: Hoult & Hoult (2013) FLC 93-546 at 87,283 and 87,296 - 87,298.
And at paragraph 68 and following:
Finally, we accept the husband’s submission that the hardship required by the section is something more than unfairness. In In the Marriage of Whitford (1979) FLC 90-612 (“Whitford”) at 78,144-78,145 the Court said that hardship is:
…akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment…
…
In ordinary parlance, hardship means something more burdensome than “any appreciable detriment'”. We consider that in subsec. 44(4) the word should have its usual, though not necessarily its most stringent, connotations.
Although Whitford was a case dealing with s 44(4) and applications for leave to institute property proceedings, these passages are relevant to s 90K(1)(d), as they discuss ‘hardship’ in the context of its ordinary meaning. There is nothing in the terms of s 90K that suggests a different approach should be taken.
It is convenient to repeat the findings made by the primary judge in Pascot, which were adopted by the primary judge in this matter in relation to hardship:
378.If the Agreement is set aside, the wife would be able to make an application for orders under secs 72 and 79 of the Act. It is safe to say that the outcome of such an application is likely to be very different to that brought about by the Agreement.
379.In light of this, I would find that hardship on the part of the wife is established, and that setting the Agreement aside is the only remedy.
Those findings do not establish hardship as it is correctly understood.
The wife’s evidence in relation to her financial position was contained in a Financial Statement sworn on 21 August 2015 and an affidavit sworn on 16 February 2017 where she deposed that “my present financial circumstances are consistent with that statement save that I am in receipt of $1,000.00 per month spousal maintenance from the husband”.
That statement was not accurate. In cross-examination, the wife said that the amount which she received from Commonwealth benefits had changed but she was not able to recall how much she now receives other than to estimate that her benefits were roughly $500 per week.
Accepting that figure for present purposes, the wife’s weekly income is:
Commonwealth benefits $500
Child Support $493
Spousal Maintenance $231
Total$1,224 or $63,648 per annum free of tax.
She pays rent of $540 per week.
The wife’s financial position, although poor, does not equate with “hardness, severity, privation, that which is hard to bear or a substantial detriment”, as adopted in Fewster.
In cross-examination, the wife conceded that both children are now at school full time and that they are both in the care of the husband every weekend. She conceded that, before the birth of the children, she had a good work history and that she is capable of seeking employment of some kind during the hours when the children are not in her care. She accepted that she has the capacity to improve her financial position.
Counsel for the husband addressed the issue of whether, for the purpose of this enquiry, it was appropriate to take into account the wife’s receipt of a means tested pension, having regard to the provisions of s 74(3) of the Act.
I accept that the provisions of s 75(3) of the Act relate only to an application pursuant to s 74 of the Act and have no application here. However, as counsel for the husband pointed out, the wife is in receipt of spousal maintenance pursuant to an interim order and her rights to pursue spousal maintenance are not affected by the Agreement.
The wife has not established that she suffers hardship as defined in the section.
The ground is not made out.
SECTION 90K(1)(e)
In relation to this ground the wife again relied on the fact that the Agreement makes no mention of children. Again, Counsel for the wife withdrew that submission on being alerted to the existence of Clause 6 of the Agreement.
The wife relied upon the fact that the Agreement was signed three days before the parties married. On behalf of the wife it was asserted that the timing of the execution of the Agreement allowed no time for the wife to make proper enquiries as to the value and identity of the husband’s corporate entities.
Dealing with this submission, it was the wife’s evidence that she made no enquiry about the husband’s assets either before signing the Cohabitation Agreement in 2004, after signing the Cohabitation Agreement, or before signing the Agreement in 2005.
She did not ask the husband for any information and did not ask her solicitor to make any enquiries about the value of his assets. In those circumstances, the lapse of time between the signing of the Agreement and the marriage is not relevant. Had the wife been concerned to make enquiries about the value of the husband’s assets, the wedding could have been postponed.
I do not accept that those facts establish that the husband engaged in unconscionable conduct.
The wife also relied upon the fact that the husband paid the fees of the lawyer who gave her advice before she signed the Agreement. So that the significance of this evidence is clear, in the wife’s Case Outline, counsel for the wife submitted:
The husband was well aware that the wife was being independently advised by a solicitor being paid by him and that it would be most unlikely in all the circumstances for the solicitor independently advising the wife to undertake time consuming and expensive searches, let alone obtain valuations of the husband’s assets. The wife’s evidence is that she had limited knowledge of the husband’s finances.
The husband paid the fees of the solicitor who advised the wife. However, there was no evidence that the wife’s solicitor was instructed to undertake searches or valuations. On the contrary, the wife gave no instructions for such enquiries to be made.
If it is intended to assert, in the absence of any evidence, that because the husband was ultimately paying the fees of the wife’s solicitor, that solicitor would not act properly and professionally to give independent advice to the wife, I reject that submission.
The elements of the doctrine of unconscionability are contained in the High Court decision of Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 (“Amadio”). Mason J said, at page 461:
[R]elief on the ground of ‘unconscionable conduct’ is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of the party who suffers from some special disability or is placed in some special situation of disadvantage, eg a catching bargain with an expectant heir or an unfair contract made by taking advantage of a person who is seriously affected by intoxicating drink. Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two. In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconsciously taking advantage of that position.
Deane J said, at page 474:
The jurisdiction is long established as extending generally to circumstances in which (i) a party to a transaction was under a special disability in dealing with the other party with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that disability was sufficiently evident to the stronger party to make it prima facie unfair or "unconscientious" that he procure, or accept, the weaker party's assent to the impugned transaction in the circumstances in which he procured or accepted it. Where such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable…
In applying the principles from Amadio, Davies J in Parras Holdings Pty Ltd v Commonwealth Bank of Australia [1997] FCA 1107 summarised the elements of unconscionable conduct as follows:
Thus, there are two elements to be considered. The first is superior bargaining power on the one hand and special disadvantage on the other. The second is the taking of an unfair or unconscientious advantage of the opportunity thereby created. The circumstances in which the principle will apply cannot be definitely described. The facts of each particular case must be examined.
The above statement made by Davies J was supported by the Full Court of the Federal Court on appeal in Parras Holdings Pty Ltd v Commonwealth Bank of Australia [1999] FCA 391 (see [56] – [63]).
In Saintclaire v Saintclaire (2015) FLC 93-684 (“Saintclaire”), the Full Court of the Family Court (Strickland, Murphy and Kent JJ) said the following (citing MacMillan J from the Victorian Supreme Court in Mahoney v Mahoney [2015] VSC 600, at [185]):
22. Recently, the principles were reiterated this way:
The doctrine of unconscionability will intervene to prevent a donee from retaining the benefit of a gift where a person under a special disability has transferred it to them in circumstances where it would not be in good conscience to do so. A special disability is an attribute of the donor, which renders them incapable of making a judgment as to his or her own interests. Equity will intervene when the donee has actual knowledge or knowledge of the facts that would raise a question in the mind of a reasonable person that the donor suffers from a special disadvantage and takes advantage of it.
Thus, for the wife to prove that the husband engaged in unconscionable conduct in satisfaction of s 90K(1)(e) of the Act, the following elements must be proven: that she was under a “special disability” in dealing with the husband; that the wife’s special disability was sufficiently evident to the husband or that he had knowledge of it; and that the husband unconscientiously took advantage of the wife’s special disability.
It is not immediately clear on the evidence how it is asserted that the wife suffered from a special disability that rendered her “incapable of making a judgment as to [her] own interests”.
The case law in relation to special disability indicates that there must not only be a difference in bargaining power, but also that the circumstances are such that the weaker party’s ability to conserve their own interests must be impaired.
In Saintclaire, the Full Court relied on the following principles:
Unconscionability
20. Equity might set aside a transaction or agreement:
…whenever one party to a transaction is at a special disadvantage in dealing with the other party because illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affect his ability to conserve his own interests, and the other party unconscientiously takes advantage of the opportunity thus placed in his hands.
21. Importantly:
Mason J in Amadio’s case … was at pains to emphasise that the mere circumstance that there was some difference in the bargaining power of the parties was not enough; “the disabling condition or circumstance [must be] one which seriously affects the ability of the innocent party to make a judgment as to his own best interests”.
(Footnotes omitted)
In cross-examination by counsel for the husband, the wife accepted that at the time of meeting the husband in 2003 she had a good work history through working for different departments and agencies. She said she is currently conducting a business from home.
The wife had the opportunity of obtaining legal advice prior to signing the Agreement, and accepted in cross-examination that she was given the opportunity by her solicitor to ask questions. There is no indication that the wife requested more time to consider the Agreement. As noted earlier, the wife had since May 2004, when the Cohabitation Agreement was signed, to consider or enquire into the husband’s asset position.
There is no evidence that the wife suggested, either before signing the Agreement or after the parties’ marriage, that she did not want the Agreement to proceed. She conceded in cross-examination that she wanted to sign the Agreement and that she would have done so no matter what the husband’s financial position.
It is not accepted that the time frame between signing the Agreement and the marriage was such that it caused an impairment to the wife’s ability to make a judgement as to her interests. The wife had since May 2004 to consider the husband’s asset position after entering into the Cohabitation Agreement. The Cohabitation Agreement provided, at Clause 2, that the husband had “shares in many corporations and motor cars”. A similar provision is found at Clause 2 of the Agreement. The wife accepted that she had the opportunity to enquire as to the value of the husband’s assets and she did not do so.
Similarly, as noted earlier, I do not accept that the husband paying for the wife’s legal fees placed the wife in a position of a special disability vis-à-vis the husband.
There being no “special disability” of the wife, there is no need to canvas the remaining elements of unconscionable conduct.
This ground is not made out.
CONCLUSION
The wife has not made out the grounds for setting aside the Agreement.
Her application will be dismissed.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 23 February 2017.
Associate:
Date: 23/02/2017
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