BINDING FINANCIAL AGREEMENT - Financial agreement entered into between the husband and wife prior to their marriage - The wife insisted on the agreement to protect her assets and would not marry the husband if he did not enter into an agreement - The wife's sister acted as the wife's legal adviser - The husband seeks to set aside the agreement or have it found to be not binding.

SETTING ASIDE - Whether the agreement should be set aside on the grounds of undue influence, duress or unconscionable conduct - Consideration of the relationship between s 90K(1) and s 90K(1)(e) - Grounds to set aside agreement not established.

IS THE AGREEMENT BINDING - Whether the financial agreement is binding under s 90G - Consideration of the Full Court's decisions in Hoult & Hoult and Wallace & Stelzer - Requirement that the parties received legal advice but no requirement for a signed certificate or statement - The husband received the prescribed legal advice - The husband's advice was independent despite the former professional association between his solicitor and the wife's sister - The wife received the prescribed legal advice - The financial agreement is binding.

Legislation:

Family Law Act 1975 (Cth), s 90B, s 90G, s 90K, s 90KA
Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant: Mr Berry
Respondent: Mr Nicholls QC

Solicitors:

Applicant: Calverley Johnston
Respondent: Hunter Cook Legal

Case(s) referred to in judgment(s):

ACCC v C G Berbatis Holdings Pty Ltd (2000) 169 ALR 324
ANZ Bank v Karam (2005) 64 NSWLR 149
Bank of Baroda v Rayarel [1995] 2 FLR 376
Barton v Armstrong (1976) AC 104
Black & Black (2008) FLC 93-357
Blomley v Ryan (1956) 99 CLR 362
Bridge v Campbell Discount Co. Ltd [1962] AC 600
Bridgewater v Leahy (1998) 194 CLR 457
Commonwealth Bank of Australia v Amadio (1983) 151 CLR 447
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
De Lorean v De Lorean 511 A.2d.1257
Diprose v Louth (No.2) (1990) 54 SASR 450
Fevia & Carmel-Fevia (2009) FLC 93-411
Fletcher v Fletcher 628 N.E.2d 1343, 1348 (Ohio 1994
Hoult & Hoult (2011) FLC 93-489
Hoult & Hoult (2013) FLC 93-546
In Re Marriage of Spiegel, 553 N.W.2d 309, 318 (Iowa 1996)
In The Matter of LC (Children) [2014] UKSC 1
Johnson v Buttress (1936) 56 CLR 113
Kakavas v Crown Melbourne Ltd (2013) 298 ALR 35
Kostres v Kostres (2009) FLC 93-420
Louth v Diprose (1992) 175 CLR 621
Parker and Parker (2012) 260 FLR 284
Parras Holdings Pty Ltd v Commonwealth Bank of Australia [1997] FCA 1107
Pascot & Pascot [2011] FamCA 945
Powell v Powell [1900] 1…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading WELDON and ASHER

Details

AGLC: WELDON and ASHER [2014] FCWA 11
Case: [2014] FCWA 11
Decision Date: 21 FEBRUARY 2014

CaseChat Overview and Summary

The parties to this case, Weldon and Asher, were married and entered into a financial agreement prior to their marriage. The wife, Asher, insisted on the agreement to protect her assets and would not marry Weldon if he did not enter into an agreement. The wife's sister acted as her legal adviser in the negotiation of the agreement. Weldon now seeks to set aside the agreement or have it found to be not binding.

The court was required to determine whether the agreement should be set aside on the grounds of undue influence, duress or unconscionable conduct. The court considered the relationship between section 90K(1) and section 90K(1)(e) of the Family Law Act. The court found that the grounds to set aside the agreement had not been established.

The court considered whether the financial agreement was binding under section 90G of the Family Law Act. The court considered the Full Court's decisions in previous cases and found that the agreement was binding. The court found that the wife had acted with full knowledge and understanding of the agreement and had received independent legal advice. The court also found that the agreement was fair and reasonable.

The court found in favour of Asher and determined that the agreement was binding. Weldon's application to set aside the agreement was dismissed.

Orders