By Briana Kotzapavlidis

19 July 2018

It is a fundamental pre-requisite for a Financial Agreement to be binding and enforceable, that before signing the agreement, both parties must receive independent legal advice as to the nature and effect of the agreement, and the advantages and disadvantages of entering into the agreement at that time.

Each party’s lawyer must sign a Statement of Independent Legal Advice, confirming that this requirement has been met. A Financial Agreement is not “just a piece of paper“ or “like any other contract“. Each party must have a “warts and all“ understanding of what the agreement means and whether it represents a “good deal” for them or not. The quality of the advice that is provided to the other party is equally as important.

The current Federal Circuit Court case of Bolden & Woodruff [2018] FCCA 1439 concerns an application by the Wife to seek to set aside the parties’ Financial Agreement because the Wife asserts that her lawyer did not provide her with adequate advice about the agreement or the disadvantages and advantages of entering into it. The Husband has been successful in his application to join the Wife’s lawyer as a party to the proceedings, essentially on the basis that if the Wife was not properly advised (and the agreement is set aside as a result), the Husband seeks that the Wife’s lawyer pay damages, interest and costs. It is also claimed that the Wife’s lawyer engaged in misleading and deceptive conduct in the way he carried out his professional duties and advised the Wife in relation to the agreement.

Our Family Law team acknowledges the important role that we play in carefully drafting and providing comprehensive and trusted advice in relation to our clients’ Financial Agreements (be it before, during or after marriage or de facto relationship).

 

The Family Law team at Tisher Liner FC would be happy to assist and welcome your inquiries in relation to Financial Agreements or any other aspect of Family Law.

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