Can a Binding Financial Agreement Be Set Aside?
In this video, Page Provan Managing Director and Accredited Family Law Specialist Bruce Provan, discusses whether a binding financial agreement can be set aside.
My name is Bruce Provan, I’m the Managing Director of Page Provan, Family and Fertility Lawyers. We’re a firm of lawyers that practises exclusively in family and fertility law in central Brisbane. A question we’re sometimes asked by clients is whether a binding financial agreement can be set aside.
In other words, is a binding financial agreement prior to the relationship or pre-marriage really worth the paper that it’s written on? And the short answer to that is, generally, it is if it’s properly drafted.
Now, there are some circumstances where a court can set aside a prenuptial agreement, but those cases are the exception, and some of the grounds upon which a court can set aside, and they have set aside these prenuptial agreements, are things like, firstly, if there’s been undue influence.
Now, what undue influence is, it’s a situation where one of the parties to a marriage says that they didn’t properly understand or didn’t give their true consent to what is in the agreement. In other words, they feel as though their will was over born by the other person. Now, obviously, in any relationship, there is some give and take in terms of any negotiations.
But where the circumstance between the parties is one such that court finds that the will of one of the parties has been overborne, that case, the agreement could be set aside on the basis of undue influence.
The other situation where it can be set aside is what’s called unconscionable conduct, and what that means is that one of the parties to the relationship has some disability, and the other person takes advantage of that disability.
Now, it might not just be some physical disability or mental disability. It can be something as simple as whether there’s an infatuation, which means that one of the parties will basically sign anything to keep the other person happy. But importantly, the other person is aware of that and takes advantage of those circumstances.
Now, there are some other circumstances when these agreements can be set aside. There are certain formalities that have to be complied with, and if those formalities are not complied with, that can be set aside. The agreement needs to refer to the correct sections of the Family Law Act, for example.
The agreement needs to be signed by both lawyers, and the lawyers must state that they have given their client advice about the advantages and disadvantages of signing the agreement before it’s signed.
The other circumstances where a court might set aside a binding financial agreement is if one person feels pressured prior to a marriage, to sign the agreement.
So there have been cases where in the last days leading up to a wedding, one person signs the agreement and they turn around and say, well, look, they’ve signed the agreement only because they wanted the marriage to go ahead.
So our advice to clients in that situation is, don’t pressure the other person into signing the agreement. If the agreement doesn’t get signed before the wedding, it can always be signed after the wedding. Those are just some examples of when a court might set aside a binding financial agreement.
So if you’re contemplating entering into a binding financial agreement, please come and see us at Page Provan, and we can give you the appropriate advice about what needs to be done to make sure that, that agreement sticks and is unlikely to be set aside.
Bruce Provan from Page Provan, Family and Fertility Lawyers.