Binding Financial Agreement Cases
Section 90E of the Family Act provides that child care can be included in a matrimonial agreement, provided the child is born and mentioned, and the exact amount to be paid is included in the agreement. It goes without saying that the courts will always take into account the best interests of the child and can set aside all agreements that do not meet this threshold. With respect to undue influence, the Court has recognized certain relationships in which there is a presumption of unacceptable influence. For example, parents and children, attorneys and beneficiaries, lawyers and clients. In any case, the commonality is that one party is “fundamentally subordinated” to the other. The court insisted that a bride and a bride do not automatically fall into this category. The Court recognized that undue influence arises when there is no free will in the decision-making of a contracting party. This was not the case for Thorne/Kennedy, where the High Court was satisfied that the husband`s conduct towards the wife at the time the agreements were entered into was “unacceptable” and that he had taken advantage of the woman`s “particular” disadvantage to obtain agreements in her favour, thereby causing considerable prejudice to the woman`s interests. In fact, a BFA can deal with all financial and wealth issues between the parties, including the spousal removal of support rights. However, the Tribunal rejected these arguments and held that the agreement should be maintained for four main reasons: it is clear from this case that the BFA is often used in cases where one party occupies a higher financial position relative to the other and is intended to benefit the party who holds the wealth and power in the relationship.
They are therefore more open to challenges when relationships break. The High Court stated that it was not necessary to decide whether the agreement was not applicable for “coercion” and unanimously conceded the appeal, on the grounds that the agreement had to be set aside because there had been “unacceptable behaviour” on Mr. Kennedy`s part to have Ms. Thorne sign the agreement. Read on to learn more about marital and post-marriage agreements and the factors you need to consider when entering into your financial agreement. In March 2015, Judge Demack of the Federal Circuit Court in Brisbane ruled that the binding financial agreements signed by the couple were not binding, as they had been signed under duress resulting from unequal treatment of bargaining power if it had not achieved a reasonable result in accordance with the results. Judge Demack set aside the agreements. It is important to recognize all the effects that a separation will have on children or future children in a marriage pact. Whether you intend to have children in your relationship, it is good practice to mention the possibility of children and how this will affect the distribution of wealth and property. If this is not mentioned and a child is born, the agreement may be invalid.
The woman then appealed to the High Court. The High Court upheld the judge`s original decision to repeal the financial agreement. In its decision, the High Court accepted that, in view of the power imbalance and the circumstances in which the financial agreement had been signed, the woman had been deprived of the free will to decide on the conclusion of the agreement.