Ruzic and Ruzic

In *Ruzic and Ruzic*, heard in the Family Court of Australia, the applicant husband sought orders to enforce a financial agreement dated 27 February 2006, or alternatively, for the agreement to be enforced as if it were a court order. The respondent wife sought to have the agreement set aside and the husband's application dismissed. The central issue for determination by the court was whether the financial agreement was "binding" on the parties pursuant to section 90G of the *Family Law Act 1975* (Cth).

The court was required to consider whether the financial agreement met the requirements of section 90G of the Act, specifically concerning the provision of independent legal advice to each party and the certification of that advice. The wife contended that the agreement was not binding because the original certificates of advice did not comply with the Act, and the subsequent replacement certificates could not form part of the agreement due to the prescribed method for variation or termination. The husband argued that the agreement complied with the necessary provisions, and that even if there were defects, the court had the power to rectify the agreement under equitable principles.

Stevenson J found that the financial agreement itself contained a statement to the effect that each party had received independent legal advice as to the matters referred to in section 90G, which satisfied the requirements of section 90G(1)(b). While acknowledging that the original certificates of advice did not comply with section 90G(1)(c), the court noted that subsequent certificates, which did comply with the Act, were provided and substituted as annexures to the agreement. The court held that there was no express requirement in the Act for the provision of advice and certification to be contemporaneous events, and that the substitution of compliant certificates was permissible. Therefore, the court concluded that the agreement was binding on the parties.

Furthermore, Stevenson J indicated that even if the agreement were found to be defective, the court would have been persuaded by the husband's submissions regarding the availability of rectification under section 90KA of the Act, which allows the court to determine the validity and enforceability of financial agreements according to the principles of law and equity. The court found that the original certificates were rectified by the second certificates, particularly given that the body of the agreement itself clearly indicated that the requisite advice had been provided. The court ordered that, for the purposes of Part VIIIA of the *Family Law Act*, a binding financial agreement dated 27 February 2006 existed between the parties.