LOTTA & LOTTA

The Full Court of the Family Court of Australia, constituted by Foster J, considered an application by the husband seeking a declaration that a financial agreement entered into by the parties on 14 April 2009 was a binding financial agreement for the purposes of Part VIIIA of the *Family Law Act 1975* (Cth). The wife opposed this application.

The central legal issue before the court was whether the financial agreement dated 14 April 2009 met the requirements of s 90D of the *Family Law Act 1975* (Cth) to be considered a binding financial agreement. Specifically, the court had to determine if the agreement was made in accordance with the formalities prescribed by the Act, including whether it was signed by both parties and whether each party received independent legal advice before signing.

Foster J found that the agreement was not binding. The reasoning focused on the absence of evidence demonstrating that the wife had received independent legal advice prior to signing the agreement, a mandatory requirement under s 90D(1)(b) of the Act. Without proof of this essential step, the agreement could not be declared a binding financial agreement.

Consequently, the husband's application for a declaration that the agreement was binding was dismissed. The court also made orders regarding any applications for costs, requiring them to be filed within one month of the date of the orders, supported by affidavit.