KEY WORDS: Binding Financial Agreements – s 90B Family Law Act 1975 – Agreement declared binding  under s 90G(1B) as opposed to s 90G(1)

In Manner [2015] FCCA 3043 (18 November 2015), Judge Jarrett heard a case where the wife sought a declaration that a financial agreement under section 90B Family Law Act 1975 (Cth) (the “Act”) was not binding.

The husband in this case sought a declaration that the agreement was in fact binding under s 90G(1B). However, the wife argued that due to the ‘original version’ being signed by one party pre-marriage and the other post-marriage, it was not a financial agreement for purposes of the Act. In addition to this, the wife argued that if a financial agreement was found to exist, or should be set aside on the grounds of fraud, or due to Mr Manner exerting fraud.

Issue

This case involved an application made by Ms Manner for an order that the financial agreement between Mr Manner and herself be set aside pursuant to section 90K of the Act. Ms Manner put to the Court that she signed the agreement prior to the wedding and went to Mr Manner’s solicitor where a copy of the agreement was subsequently sent by facsimile to Mr Manner to be signed. The basis for Ms Manner’s claim is that Mr Manner signed a copy of the agreement and not the original document.

The question for the Court was whether the financial agreement should be held binding pursuant to section 90G (1A) of the Act.

Reasoning

The Court cited the case of Hoult [2013] FamCAFC 109 to explain that the burden of establishing the binding nature of the financial agreement is on the person seeking to establish such a fact. However, by including the declaratory relief that she has, Ms Manner had an onus to establish that an agreement existed between both parties in accordance with the Act.

The Agreement was viewed as one of a contractual nature. The reasoning for this is that Ms Manner executed the agreement, took it to Mr Manner’s solicitor who then sent the document to Mr Manner for signing which constituted acceptance of the agreement. Furthermore, in relation to Ms Manner contending that Mr Manner in fact signed a copy and not the original, therefore rendering the agreement redundant, this contention was dismissed.

The Court relied on Part VIIIA of the Act, which outlines there is no requirement for a financial agreement to be signed as an original by the parties together, or witnessed. In the Court’s view, Ms Manner’s affirmation of the financial agreement and its operation as between the parties meant that pursuant to section 90K(1) of the Act. Therefore, a financial agreement was found to exist between the parties and the Court refused to set this aside.