Marriage financial agreements need to be finalised well ahead of wedding15-June-2014 Family Law By admin
If you are getting married and are looking to enter into a Section 90B Financial Agreement, make sure you finalise and sign the agreement well before the wedding date otherwise you could face the risk of it being set aside (disregarded) by the Court.
In the case of Parkes & Parkes (24 January 2014), the Court set aside the Section 90B agreement that had been signed two days before the wedding on the basis that the husband exercised duress, undue influence and unconscionable conduct.
Details of the Parkes & Parkes case
The husband and wife were engaged in December 2007 and due to be married 11 months later in 2008. They had been in a relationship for six years. All of the wedding arrangements were in place. The wedding reception was paid for by the wife’s parents and they had spent in excess of $35,000. All of the guests had been invited.
The husband raised the issue of entering into a financial agreement only three days before the wedding. He handed his then fiancée a copy of the proposed agreement, which he had already signed. When she questioned what would happen if she did not sign the agreement, the husband told her: “the wedding will be off”.
The husband arranged for the wife to see a solicitor and drove her there with his mother also in the car. While the wife spoke with the solicitor for around 20 minutes, the husband and his mother waited in the car. The solicitor provided the following advice to the wife:
- She would receive the items listed in Schedule 1
- The husband would retain the items in Schedule 2
- The agreement changes when she and the husband have children
- She should not sign the agreement.
The solicitor did not go through each paragraph of the agreement with the wife; however, the wife believed she had no choice but to sign the agreement as she was getting married in two days.
The wife argued that she was pressured to sign the agreement, otherwise the wedding would be called off and her relationship with the husband would most likely be terminated.
The Court decided that the wife was in the position of “special disadvantage”. The wife was aware, as a result of being advised by the solicitor, that the agreement was not to her advantage, yet she signed it as she believed she had no choice.
The Court did not deem the wife’s consent to be independent and voluntary and held that she was subject to duress and undue influence by the husband. So it set aside the agreement.
Streeterlaw Family Law solicitor Shweta Kumar said the key message from this case is to ensure any financial agreement is put in place well ahead of the wedding date.
“The time leading up to a wedding can be a very hectic period and leaving an important decision such as entering into a financial agreement only a couple of days prior to the wedding date could create major issues for you later,” she said. “Start early and contact one of our solicitors as soon as you have set the date for your big day! While there is no timeframe to stipulate within the Family Law Act as to an appropriate time to sign a financial agreement, we would suggest they be finalised at least three months prior to the wedding to ensure both parties have had plenty of time to consult and agree on it.”