Soglia and Soglia

[2019] FamCA 440

FAMILY COURT OF AUSTRALIA

SOGLIA & SOGLIA [2019] FamCA 440

FAMILY LAW – FINANCIAL AGREEMENT – where the wife seeks to set aside a financial agreement entered into between the parties – where the husband contends for the financial agreement to remain in full force and effect – where the wife’s application is dismissed.

Family Law Act 1975 (Cth) ss 90G, 90K, 90KA

Thorne v Kennedy 263 CLR 85
Kakavas v Crown Melborne Ltd (2013) 250 CLR 392
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447

APPLICANT: Ms Soglia

RESPONDENT: Mr Soglia

FILE NUMBER: SYC 8323 of 2015

DATE DELIVERED: 12 July 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Sydney

JUDGMENT OF: Baumann J

HEARING DATE: 18 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms R Druitt

SOLICITOR FOR THE APPLICANT: AS Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr D O’Connor

SOLICITOR FOR THE RESPONDENT: Redmond Hale Simpson Solicitors & Barristers

Orders

1. That the application of the wife to set aside the Binding Financial Agreement dated 20 September 2007 be dismissed.

2. That if the husband wishes to pursue an application for costs, then:

   (a)the husband shall file and serve within thirty (30) days of the date of this Order, written submissions as to costs including an estimate of costs on a party and party and/or indemnity basis (if sought) so as to enable the Court to consider fixing costs if an order for costs is to be made;

   (b)the wife shall file and serve within sixty (60) days of the date of this Order, written submissions in response both as to liability and as to quantum; and

   (c)unless otherwise ordered, the issue of costs shall be determined on the papers in chambers.

3. That all other applications (save as to costs) are dismissed.

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 Soglia & Soglia 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 BRISBANE

FILE NUMBER: SYC 8323 of 2015

Ms Soglia

Applicant

And

Mr Soglia

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties to this matter, the Applicant Ms Soglia (“the wife”) and the respondent Mr Soglia (“the husband”) executed an agreement which was dated 20 September 2007, before solemnising their marriage in 2007.

2. If the Agreement is a Binding Financial Agreement under the Family Law Act1975 (the “Act”), then the terms of the Agreement seriously affect the parties’ rights under the Act arising from the subsequent breakdown of their marriage.

3. The parties separated in 2013 and were divorced in 2014. I mean no disrespect to the parties in referring to them as wife and husband in these Reasons, rather than Applicant and Respondent.

4. The wife asks to set aside the Agreement. The husband says the Agreement should remain in full force and effect. For the Reasons which follow the Court has decided that the wife’s Application should be dismissed.

Credit

1. Counsel for the husband contends that the wife’s evidence showed a lack of candour – he went higher submitting not only was the wife’s evidence unreliable, but I should find effectively the evidence of the wife was untruthful.

2. I had the opportunity to observe the parties give evidence. The husband struck me as both reliable, consistent and pragmatic. Whilst like the wife, and considering the events of most relevance occurred 12 years ago, his recall of specific dates was not perfect, I found the husband to be a more believable and reliable witness generally than was the wife.

3. In assessing the wife’s demeanour and evidence, I must take into consideration that English is not her first language. The husband says her English is stronger than the Wife seeks to convey. In this respect the evidence of his unchallenged witness Mr F that he and his wife attended the wedding and frequently attended the Suburb G home and that the wife had a “good command of the English language” and that he never found the wife “other than completely competent in expressing or understanding the English language”, corroborates the husband’s evidence. Mr H, who gave the wife the “independent legal advice” for the Binding Financial Agreement, in cross examination said the “communication was not such that I didn’t believe I could not get instructions”. On many occasions the wife answered questions put to her in English under examination, and answered those questions without seeking the assistance of the Court appointed interpreter.

4. On this basis, even allowing for the mutual vagueness about dates the wife’s:

   a)equivocation about her engagement of or discussions with her customer and practicing solicitor Mr L, was confusing;

   b)failure to concede or correct, even in the face of access to her solicitor’s file, that the only source of information for the identity and asserted values of her property be included in the Binding Financial Agreement, must have been her; and

   c)insistence, until it became an obvious error when being cross examined, that “the first time I learnt that [Mr Soglia] wanted me to sign a pre-nuptial agreement was via a telephone conversation which occurred on or around Monday 17 September 2007 or Tuesday 18 September 2007” (see paragraph 16 of the wife’s Affidavit filed 10 February 2017),

   combine to cause me to not quickly accept the evidence of the wife, where it differs from the evidence of the husband, unless corroborated. These findings as to credit shaped the statements of fact that follow as to critical events. Those statements of fact should be construed as findings of fact. 

The contextual background facts

1. Because the hearing before me related to a discrete threshold issue, the statements of facts which follow give context to that discrete issue. For example, although the wife’s trial Affidavit from paragraph 108 provides her evidence as to events “once married” and “financial contributions during the relationship” (paragraphs 149 to 168) and alleged “contributions to the Suburb G Property” (paragraphs 172 to 204), I did not regard such matters as relevant to the critical events surrounding the creation and execution of the Financial Agreement, and therefore cross examination was not required at this stage on that evidence.

2. Similarly paragraphs 205 to 245 were not the subject of cross examination.

3. I deal with the relevant facts as found by me as follows.

4. The husband was born in Australia in 1951 and was 67 years of age at the trial. The wife was born in Country M in 1964 and was 55 years of age at the trial. The wife and her daughter Ms J (now aged 28 years) moved to Australia after the death of the wife’s first husband. (and the father of Ms J), in 1998 when Ms J was seven years of age.

5. The wife entered on a tourist visa and the basis upon which the wife now enjoys permanent residency is not revealed to the Court, but nothing turns on that uncertainty.

6. The wife, a tradesperson by occupation, purchased a business in 1999 and by 2002, had sufficient funds to purchase a home in Suburb T for $352,000 with a mortgage secured of $316,800.

7. The parties met at a party in October 2006. At the time the husband operated a wholesale business and owned some residential and commercial property. He says, and I accept, he had resolved a property settlement with his first wife by this time – which he says caused the assets under his control to be diminished. He says, and I accept, that he was wary of marrying again without protecting his assets.

8. The relationship progressed quickly and within a few weeks, sometime in November/December 2006, the husband proposed marriage to the wife, who accepted the proposal.

9. Before the proposal the husband says he told the wife that although he liked her and wanted to be with her he did not wish to get married. I accept the husband told the wife this was his position. The wife denies this conversation took place.

10. The wife acknowledges that she told the husband if they were to be together they would have to get married as this was the expected cultural custom for her Country M community and friends. There is a further suggestion that the wife believed (on what basis is unknown) that she could not return to Country M with the husband unless she was married.

11. I find that the wife’s insistence on a marriage for a long term relationship from her perspective was communicated to the husband.

12. However, on all the evidence, I am satisfied that the husband made it clear to the wife from the time of engagement and did not waiver in his view, that he required the wife to sign a “pre-nuptial not to touch any of my assets and keep yours” if they were to marry. I accept the husband’s evidence at paragraph 11 of his Affidavit filed 19 December 2016.

13. The parties had an engagement party on 2 December 2006 and then went for a holiday to the USA together.

14. I accept, consistent with the husband’s belief as expressed by him, that the wife initially indicated she would enter into a Financial Agreement so he telephoned his solicitors on 12 March 2007 to prepare a document to protect his assets. The file note records that they would send out a “working document”. I am satisfied that a draft “working document” was sent to the husband which he retained and eventually gave to the wife some months later.

15. The husband says between 12 March 2007 and 14 March 2007, he had further discussions with the wife and (at paragraph 27) says the wife said she will not be signing an agreement. I accept at around this time the wife said she would not sign the Agreement, and that provides context to the message to his solicitor on 14 March 2007 that he “is not marrying but would like (you) to keep the prenuptial”. When his solicitor spoke to him that day, the solicitor recorded the husband telling her that “he is not going to marry her – we still be friends”.

16. At this critical point in the relationship a clear divergence in the parties’ sworn perceptions occurs.

17. The husband says that:

    “28.     Between 14 March 2007 and July 2007, [Ms Soglia] and I continued to see each other but not as frequently as before. We had stopped seeing each other three to four times per week and only saw each other twice a week, mostly on Friday and Saturday nights. We were still having an intimate sexual relationship during this time.”

18. In cross examination the husband conceded, during this period, he regularly on a Monday watched the wife playing sports. The husband’s version of the relationship being less intense was challenged by the wife, who maintained that the wedding preparations (securing a venue; arranging entertainment; preparing invitations; and making wedding and bridesmaid dresses) all continued uninterrupted from the time of the engagement in December 2006.

19. For reasons not clear, no evidence to corroborate was offered of:

    a)when the venue was booked and a deposit was paid by the husband. The husband said he felt he at least paid a deposit in March 2007 but produced no evidence, if he did, when if at all he cancelled the booking before, then remaking the booking;

    b)when wedding invitations were prepared and dispatched;

    c)when the material for the dresses was purchased. In this regard I do accept the wife did pay for the materials and spent many hours making the gowns, as she deposes to doing.

20. It is possible for the period between March 2007 and 6 July 2007 the parties were under different perceptions of what was happening with the husband’s requirement for a pre-nuptial agreement. In this regard, on the balance of probabilities, I am satisfied that the husband’s insistence on the wife signing a prenuptial agreement never altered. I regard it as likely the wife’s initial reluctance to sign an agreement changed, but it is not clear when this occurred. The husband says (at paragraph 30) that the wife told him in early July 2007 that:

    “I want to get married and I will accept that agreement”.

21. The wife’s case from early in her application as to when she was told by the husband of his requirement for her to sign a document is set out at paragraph 53 of her Affidavit filed 22 September 2016, where she affirms as follows:

    “53. About mid-morning on Monday, 17 September 2007or Tuesday, 18 September 2007 [Mr Soglia] telephoned me at work and said:

    ‘I want you to sign a document that says what you have is yours and what I have is mine at the day we are married. If you don’t sign this document I won’t marry you.’

    ‘I need you to sign this document. I had a girlfriend for about 6 years and we were going to get married but she wanted my house. I asked her to sign a document that stated what she had was hers and what I had was mine. She did not want to sign the document and refused to do so. So we did not marry.’”

22. When affirming an Affidavit in reply (filed 10 February 2017), at paragraph 16 the wife denied again the conversations detailed by the husband (at paragraph 16 of his Affidavit); relied upon paragraph 53 as above and again says that:

    “…the first time I learnt that [Mr Soglia] wanted me to sign a prenuptial agreement was via a telephone conversation which occurred on or around Monday 17 September 2007 or Tuesday 18 September 2007”.

23. If the wife’s evidence was accepted, then the husband is effectively threatening to call off the wedding less than one week before the event when “for the first time” he wanted the wife to sign a prenuptial agreement.

24. I do not accept this evidence of the wife, and by the end of cross examination, even experienced Counsel for the wife Ms Druitt had to concede, the wife received a copy of an agreement at least by 14 August 2007. The wife’s evidence in her trial Affidavit filed 31 May 2019 (at paragraphs 73 to 83) is therefore not accepted.

25. I am satisfied that the wife did, on or around 14 August 2007 take a draft document to a lawyer – Mr L. This is consistent with the husband instructing his lawyers on 6 July 2007 to go ahead with the preparation of the document as discussed “a few months ago”. Although there is no suggestion that Mr L or someone in his firm (identified as Ms N) had experience in family law generally (or Binding Financial Agreements in particular), the telephone conversation on 20 August 2007 (described as a “bizzare conversation”) between the husband’s solicitor Ms Hale and Ms N, satisfies me that they did look at the document and formed a view the provisions in the Agreement were “harsh and not just and equitable”.

26. After the wife got some form of advice or at least, information from her customer Mr L’s firm, I accept the wife told the husband she was not happy with the Agreement. The husband says, and I accept by this stage, he was fed up with the wife’s changing position – whilst his position remained steadfast. The discussion with his lawyer on 28 August 2007 is consistent with the husband’s chronology.

27. At some time shortly thereafter, I am satisfied that Mr L (or someone from his firm) referred the wife to Mr H, an accredited family law specialist, who first saw the wife and the draft Agreement on 3 September 2007. What then took place between the lawyers is dealt with below – taken from the evidence of the parties; Mr H (who gave evidence) and his file; and the file of the solicitors for the husband.

28. An agreement, dated 20 September 2007 was executed with certificates of independent legal advice signed by the husband’s solicitor Sandra Hale on 19 September 2007 and by the wife’s solicitor Mr H on 20 September 2007. I refer to the essential terms of the Financial Agreement below. Neither party asserts that formal compliance with the Act relating to the signing of the document was not achieved. Rather, as the introduction to these Reasons makes clear, the wife claims that undue influence or unconscionable behaviour was placed upon her. The wife no longer asserts duress was exerted upon her to sign the Agreement.

29. With the Agreement signed, the marriage took place on a Sunday in 2007 in a park in Suburb R, followed by a lavish reception for 162 guests.

30. The marriage continued until a divorce was pronounced in 2014, after a final separation around August 2013. The wife commenced proceedings on 18 December 2015 seeking property adjustment, however by 19 May 2016 she had amended her application seeking an order pursuant to s 90K of the Act that the Financial Agreement be set aside, and further (by an Application in a Case filed on the same day), that a procedural hearing be held to determine whether the claim to set aside the Agreement should be determined separately. That to do so was ultimately determined by the Court. The wife filed “Points of Claim” on 10 July 2017.

31. Since filing his initial Response on 15 April 2016, the husband has maintained his position that the wife’s Application should be dismissed, namely that the Financial Agreement is binding upon the parties and ousts the jurisdiction of the Court under s 79 to make orders for property adjustment.

32. Counsel for the Applicant wife Ms Druitt and for the Respondent husband Mr O’Connor accept that where the Financial Agreement is not challenged as to compliance with the formal statutory requirements, the onus shifts to and rests upon the other party (the wife) to establish a basis to it set aside.

The creation of the Agreement from 3 September 2007

1. On 3 September 2007, the Wife first consulted Mr H when she informed him she was due to marry the husband in three weeks’ time. She solicitor’s diary note reveals that the Wife had discussed the draft Agreement with Mr L and her daughter (who was studying law) had marked some parts of the Agreement to be changed. Mr H, having taken instructions, indicated he would send to his new client, the Wife, his standard Costs Agreement. Mr H letter to the Wife of 4 September 2007 forwarded the documents to the Wife indicating the solicitor was required by law to provide the documents “prior to us commencing any work in the matter”.

2. Despite the urgency, the Wife did not communicate with her solicitor until 13 September 2007 despite a reminder being sent to her on 12 September 2007. The husband had, on 11 September telephoned his solicitor about whether she had heard anything from Mr H and indicated that on 10 September he had a discussion with the Wife, who he claimed had lied to him about some money he had given her to give to someone else.

3. On 13 September 2007 the Wife instructed her solicitor she had returned the signed Costs documents and that he should go ahead and draft the letter now seeking variations as per her instructions on 3 September 2007.

4. Mr H sent a draft letter to the Wife at 12:18pm seeking confirmation that the draft set out the variations she required. The letter speaks for itself however on 17 September 2007 Mr H was instructed by the Wife not to send the letter seeking the variations but now required the Agreement “to be set aside after 10 years”. On the same day the husband told his solicitor that “she is going to do it” and “he is not going to marry her if she does not sign up”.

5. Despite a letter being sent by the solicitors for the wife to the solicitors for the husband at 2:52pm, on 17 September 2007 seeking the inclusion of a clause providing that “the agreement will terminate upon the tenth anniversary of the date of the agreement”, by the next day the husband was telling his solicitor that the wife would sign without amendment.

6. In my view these exchanges establish what was clear from March 2007 – namely that the husband was not prepared to marry the Wife unless she signed a prenuptial agreement that protected his assets.

1. By at least 18 September 2007 the Wife came to accept that was the husband’s position, and insisted the husband sign first (which he did) on 19 September 2007 and the wife signed on 20 September 2007. The marriage proceeded as arranged, and remained intact until final separation nearly six years later.

2. I am satisfied that the wife obtained independent legal advice from Mr H and despite her assertions to the contrary, he did inform her of the effect of the Financial Agreement on her rights under the Act. I am satisfied, before the Wife signed the Agreement, Mr H explained the “advantages and disadvantages” of the Wife entering into the Financial Agreement. I accept the diary note of Mr H prepared 24 September 2007 is an accurate record of the discussions held on 20 September 2007. It was clear the husband would not proceed with the wedding if the wife did not sign. She was given an opportunity to further consider whether she wished to sign the Agreement overnight.

3. The wife resolved, despite the advice given, to sign the Agreement.

The terms of the Agreement

1. The Financial Agreement contains a number of recitals by which the parties acknowledge, for example –

   a)That they independently satisfied themselves as to the other party’s assets and liabilities (recital I). There is no evidence they did so, relying it seems on the other party’s honesty;

   b)Confirmed they had been discussing the intention to enter into this Agreement for a period in excess of several months (recital O). The chronology above demonstrates that whilst a discussion took place as early as March 2007, intention to enter into the specific Agreement signed was formed by the husband “several months” ago – but the Wife not until a few days before the wedding;

   c)By recitals “P” & “Q”, the parties said they had “not sought to advise, guide, direct, control or pressure” the other party. The wife of course now claims that is precisely what the husband did.

2. The Agreement provides for a definition of “separate property” in their name at the time of the Agreement however acquired or property acquired after the Agreement in their name solely including property acquired in exchange for separate property. The Agreement permitted the parties to elect to acquire property in joint names, in which they would retain their separate interest, including the transfer of separate property to shared property (clause 9), with “shared property” to be dealt with under clause 13.

3. The right to claim spouse maintenance was specifically excluded (clause 24). Essentially, the terms of the Agreement sought to protect for each party, from claims after their marriage under the Act, their separate property. This was exactly what the husband had indicated at all times to the wife, as being his intention for and purpose of a Financial Agreement.

4. In my view, the fundamental Agreement is certain and complies with the requirements of the Act.

5. The issue then is, upon which the Wife bears the onus, whether the Agreement is void or voidable in terms of s 90K of the Act on the grounds of undue influence and/or unconscionable conduct from the husband towards the wife.

Principles to be applied

1. There is no doubt that parties to be married can enter into a Binding Financial Agreement which ousts the jurisdiction of the Court provided various requirements are satisfied. No argument was advanced by the wife to challenge the husband’s contention that s 90G(1) has been satisfied. In this Case, no contention was raised that clause 24 of the Agreement offends s 90F. At the time of the Agreement, the wife had assets and income and acknowledges she was able to support herself without an income tested pension, allowance or benefit.

2. The wife says that s 90K (1)(b) and s 90K(1)(e) apply in this Case to empower the Court, in the exercise of its discretion, to set aside the Financial Agreement. Those provisions provide as follows:

   “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:

   …

   (b)  the agreement is void, voidable or unenforceable; 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…”

3. Importantly, s 90KA provides in part, that the question whether a financial agreement is valid, enforceable or effective “is to be determined by the Court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts”.

4. The plurality of the High Court in Thorne v Kennedy 263 CLR 85 considered specifically the vitiating factors of undue influence and unconscionable conduct observing “it is necessary for a trial judge to conduct a close consideration of the facts … in order to determine whether a claim to relief has been established” (adopting Kakavas v Crown Melborne Ltd (2013) 250 CLR 392, [14]).

5. In referring to concepts where the person can be subjected to undue influence where the effect of factors such as pressure is that the person “has no free will” or is not a “free agent”, the Court at [32] said:

   “The question whether a person’s act is “free” requires consideration of the extent to which the person was constrained in assessing alternatives and deciding between them. Pressure can deprive a person of free choice in this sense where it causes the person substantially to subordinate his or her will to that of the other party.”

6. The High Court rejected the submission that a presumption of undue influence arises because of the relationship of a fiancé and fiancée, saying at [36] that:

   “Common experience today of the wide variety of circumstances in which two people can become engaged to marry negates any conclusion that a relationship of fiancé and fiancée should give rise to a presumption that either person substantially subordinates his or her free will to the other.”

7. When discussing the concept of “unconscionable conduct”, and after stating that the principles of unconscionable conduct in equity are not controversial said further at [38] that:

   “A conclusion of unconscionable conduct requires the innocent party to be subject to a special disadvantage “which seriously affects the ability of the innocent party to make a judgment as to [the innocent party’s] own best interests”. The other party must also unconscientiously take advantage of that special disadvantage… Before there can be a finding of unconscientious taking of advantage, it is also generally necessary that the other party knew or ought to have known of the existence and effect of the special disadvantage.”

   referring also to Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447.

8. Helpfully, when considering the vitiating factors generally the plurality stated at [60] that:

   “In the particular context of pre-nuptial and post-nuptial agreements, some of the factors which may have prominence include the following: (i) whether the agreement was offered on a basis that it was not subject to negotiation; (ii) the emotional circumstances in which the agreement was entered including any explicit or implicit threat to end a marriage or to end an engagement; (iii) whether there was any time for careful reflection; (iv) the nature of the parties’ relationship; (v) the relative financial positions of the parties; and (vi) the independent advice that was received and whether there was time to reflect on that advice.”

9. Ms Druitt for the wife, in both her written and oral submissions contended that the finding she urges the Court to make within this matrix, will persuade the Court to set aside the Financial Agreement. Counsel for the husband, Mr O’Connor, in his oral and written submissions says otherwise, and seeks an order that the wife’s application to set aside the Financial Agreement be dismissed, with costs.

Critical factual findings

1. The wife argues that she was a person with a “special disadvantage” such that the equitable principles are enlivened on the facts of this Case, through a combination of:

   a)her understanding of English was poor at the time she entered into the Agreement;

   b)the proximity of the execution of the Agreement to the wedding placed unfair pressure on the wife; and

   c)that the husband acted “unconscionably” in requiring her to execute the Agreement in these circumstances.

2. I do not find that the wife was under a “special disadvantage” or that the husband acted “unconscionably” and put pressure on her, for the following Reasons:

   a)Both parties were mature middle aged parties with significant life experience when they first met. They both had been previously married and had adult children;

   b)Even if the wife now contends that the information she gave Mr H about her assets and their values was inaccurate, that was the information she gave him on 3 September 2007; those particulars were included in the Agreement and by her execution, she clearly made that representation to the husband. She was a person with property and income capable, on her own evidence, of supporting herself adequately;

   c)Although English was not her first language, I am satisfied that she had developed an adequate command of the spoken and written English to allow her to understand the Financial Agreement and the independent legal advice of Mr H in that:

   i)the wife first entered Australia and remained from 1998;

   ii)she commenced her own business in 1999. Although the wife says that she did not need proficient English to run her business, it would have been necessary to be able to communicate with her staff and customers, I infer mostly in English;

   iii)her business developed sufficiently (as well as her income), to enable her to save a deposit and purchase the Suburb T home in 2002, securing a mortgage. Attending to such financial transactions demonstrates a working knowledge of English and business principles;

   iv)both Mr F and particularly Mr H depose to the wife having a capacity to communicate in English – with Mr H in cross examination confirming he was satisfied she understood his advice and the effect of the Financial Agreement.

   d)Although the first draft of the Agreement which the wife received in August 2007 contained a typographical error (referring to a different “wife”) and was incomplete (for example details of the wife’s property was not included), nonetheless she chose to show it to a legally qualified customer Mr L, and he (or his staff member) was sufficiently familiar with the terms to form a view the terms were “harsh” and to engage in a discussion with the husband’s solicitor Ms Hale. I am satisfied that they shared their view with the wife. I am also satisfied, although not legally qualified, the wife’s adult daughter had also read the Agreement and had shared some concerns with the wife – sufficient to enable the draft Agreement to be “marked up” with suggested amendments that were conveyed to Mr H;

   e)In my view, the wife had sufficient time before the scheduled wedding to “reflect” on the terms of the Agreement. If, as the wife continued to assert, she did not see the Agreement (or know the husband insisted on its execution), until less than a week before the ceremony, then her argument about having little time for reflection, might have had more force. That is however not the case;

   f)I accept that from around July 2007, when the husband reengaged with his lawyers and instructed them to prepare the document, the husband was of the belief that the wife would sign a prenuptial agreement as he had sought from as early as March 2007. Between sometime in August 2007 until her execution of the Agreement on 20 September 2007, the wife knew of the husband’s unwavering condition to the marriage proceeding. I accept that the wife prepared the dresses over many hours. However, it was the husband alone, on his evidence, who committed to and paid for the reception for 162 guests. Financially, the husband was more likely to lose considerable funds if the wedding did not proceed – yet he maintained his position, including not agreeing to any amendments to the Agreement;

   g)I find that the majority of guests invited to attend the wedding were friends of the wife resident in Australia and part of her supportive Country M community. I accept that a couple of people may have travelled from overseas. I accept it would have been embarrassing for the wife if the marriage was “called off” at the last moment. However, the wife had options. If the marriage did not proceed she was able to continue to live in her home; run her business and earn a sufficient income to support herself. The pressure was not, in my assessment, created by the husband but by herself. She delayed in seeking advice and was, I accept, uncertain about whether she would enter into the Agreement without amendment. The final discussions between the wife and Mr H on 20 September 2007 was understood by the wife. Mr H expressed his concerns and reminded her he could not give her “social or personal advice” about whether to enter into the Agreement. Mr H was perfectly correct in limiting his advice to legal issues – which he gave independently. I do not regard the fact that the husband gave the wife the funds to pay Mr H’ account challenges his “independence” in any way;

   h)Mr H, in his note of the conference with the wife on 20 September 2007 recounts the following:

   “I asked the client whether she had any question about the Agreement and she didn’t and seemed to understand its provisions. I asked her whether she was happy to enter into the Agreement and she indicated that she wasn’t but what can she do. I also noted that at the beginning of the conference there were two or three telephone calls on her mobile phone, one of whom was clearly her fiancé, and the client indicated that she could not speak to him now because she was with her lawyer. It seems to me that she was being placed under some pressure by her fiancé to have the Binding Financial Agreement signed, given that the wedding was only a few days away.”

   I accept that the husband was anxious to know that the wife had signed the Agreement. That was reasonable considering the actions of the wife to that date and the fact that the wedding was only three days away.

3. In the final analysis, I am satisfied that the wife had options but that with the benefit of qualified independent legal advice, she exercised her free will to sign the Agreement in the form the husband had always sought and got married. The wife would have known that the husband would not marry her, but was happy to remain as friends and maintain an intimate and social relationship, if she did not sign the Agreement. That had been his position since the time of their engagement.

4. The parties, by entering into the Binging Financial Agreement, were both aware of the effect the Agreement had on their rights under the Act. They should be bound by the terms of their Agreement in the circumstances of this case.

5. For these Reasons, the Court will not exercise its discretion under s 90K to set aside the Agreement.

6. The Court will order that the wife’s Application be dismissed.

7. If the husband wishes to pursue an application for costs as sought in the Response filed 15 April 2016, then such application is to be considered within the directions which I now make.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 12 July 2019.

Associate: 

Date:  12 July 2019