LEUNG & FAN

In the Family Court of Australia, Judge A Kelly considered an application by the applicant to set aside a pre-marriage financial agreement made in 2009 between the applicant and the respondent. The applicant alleged unconscionable conduct in the formation of the agreement, having withdrawn allegations of duress and undue influence.

The court was required to determine whether the financial agreement was void, voidable, or unenforceable due to unconscionable conduct. Specifically, the court had to assess whether the applicant was under a special disadvantage that seriously impeded her ability to make a decision to enter the agreement, and whether the respondent took improper advantage of such a disadvantage. The court also considered whether the agreement complied with the formal requirements of the *Family Law Act 1975* (Cth), particularly section 90G.

The court reasoned that while the applicant had attended upon independent legal advice and certificates were issued, the forensic onus to prove unconscionable conduct had not been discharged. The court distinguished the present case from *Thorne v Kennedy* (2017) 263 CLR 85, finding that the applicant had not established a special disadvantage that was exploited. However, the court found that the agreement was not binding due to non-compliance with s 90G(1)(c) of the Act, as neither the applicant nor her solicitor received a statement signed by the respondent's solicitor following execution.

Consequently, the court declared that the agreement was void insofar as it purported to exclude or limit the court's power to make maintenance orders. The court also declared the agreement not binding due to the s 90G(1)(c) non-compliance. Orders were made permitting the applicant to amend her application to pursue maintenance and the respondent to amend his response to seek a declaration that the agreement is binding. The costs of the preliminary hearing were reserved.