Millington & Millington

In *Millington & Millington*, the wife sought spousal maintenance from the husband, who contended that a financial agreement between them barred her claim. The matter came before Carter J of the Family Court of Australia.

The primary legal issue was whether a financial agreement entered into by the parties was binding under Part VIIIA of the *Family Law Act 1975* (Cth). A secondary issue arose concerning the application of section 90F of the Act, which can prevent a financial agreement from limiting the court's power to make maintenance orders if a party is unable to support themselves without government income support.

Carter J found that the financial agreement was not binding. His Honour reasoned that the requirements of section 90G(1) of the Act, particularly the need for the original agreement to be given to one party and a copy to the other after both had signed, were not met. The parties had exchanged parts of the agreement rather than executing a single document signed by both, and the necessary certificates of independent legal advice were not properly completed and annexed to a single, executed document. Furthermore, even if the agreement had been binding, Carter J determined that section 90F(1A) would have applied. His Honour found that the wife was unable to support herself without an income-tested allowance, given her income and expenditure, and therefore the court's power to make a maintenance order would not have been excluded or limited by the agreement.

Consequently, Carter J dismissed the husband's application and parts of the wife's applications relating to the validity of the financial agreement, but fixed the substantive applications for trial and made directions for further evidence and filings.