A court can annul and annul the agreement. The situations in which this is possible are provided for in section 90K (married couples) and section 90UM (de facto couples) of the Family Law Act 1975. It is obvious that without the declarations annexed to the agreement, it is more difficult to guarantee the validity of the agreement. If a person has previously signed a binding financial agreement, it would now be necessary to inquire about the declaration. Obviously, these requests can be much more difficult if many years have passed since the signing of the binding financial agreement. A financial agreement binds the contracting parties, if and only if: a binding financial agreement is an agreement between de facto couples, soon to be married or already married, concluded either before, during or after their relationship. The known case of Black & Black (2008) FLC 93-357 challenged the legal requirements of binary financial agreements. In this case, the parties entered into a financial agreement during their marriage, when the wife was able to assert a right to bodily injury. The husband believed that the wife would receive $200,000 from this debt and felt that he would receive half of it in accordance with the financial arrangement. The husband had made greater financial contributions to the real estate pool and, convinced that the wife would receive $200,000 from her right to bodily harm, he agreed that the parties would share the pool of property equitably upon separation. His lawyer advised the husband not to expect a substantial settlement amount and not to close the deal, which he nevertheless did.
The woman received only $40,000 for her right to bodily harm. The husband filed an application with the court to annul the agreement under Section 90G of the Family Act, claiming that there had been a modification of the agreement after the husband had already received his certificate of legal advice from his lawyer. While the husband was receiving legal advice regarding the amendment, his lawyer did not issue him a supplementary certificate. The husband also argued technically that the agreement was not binding, as the certificate had not been annexed to the agreement (i.e. it did not comply with Section 90G(1)(b) of the Act). At first instance, the court tried the wife and found that the agreement was indeed binding on the parties and filed the husband`s application. On that basis, the Court of First Instance considered that they were not entitled to modify the real estate comparator. The husband appealed in plenary and it was found that the agreement did not comply with Section 90G(1)(b) of the Act, as the agreement did not contain a statement directly acknowledging that the husband (or wife) had received legal advice, so the agreement could not be binding. The Assembly noted that, as a result of the amendments to the agreement, the agreement should have been accompanied by another certificate of legal advice issued by the husband`s lawyer. The husband`s request was allowed.
The Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009 was the legislative response to Black & Black. The amendments provide that, even if a binding financial agreement does not meet all the technical requirements of the law, the court is free to make it binding on the parties if the annulment of the agreement was unfair and unfair (in accordance with Article 90G(1A)(c)). Approval decisions regarding ownership and financing orders may consider the following: legal advice must be signed by any lawyer, but the agreement is valid whether or not the statements are attached to the agreement, provided that they are given to the other party or to the other party`s lawyer. (b) the agreement, in respect of each spouse who is a party to the agreement, shall contain a statement that, prior to the signing of the agreement, the party covered by the declaration has been made available to him or her by a lawyer, with independent legal advice, prior to the signing of the agreement, with independent legal advice from a lawyer on the following matters: the former section 90G (1) (e) no longer appears . . .
