Can a Binding Financial Agreement be contested?
Yes, a Binding Financial Agreement can be contested in Court under specific circumstances outlined in the Family Law Act 1975.
Binding Financial Agreements provide finality, however, they are not bulletproof and must strictly comply with legal requirements to remain enforceable, which is why you should invest in a family lawyer with experience to get it done properly the first time.
A party to a Binding Financial Agreement cannot simply decide that they are unhappy with it after it has been signed. There are specific grounds that a party must use to contest a Binding Financial Agreement in Court.
The most common grounds to contest a Financial Agreement are as follows:
Non-disclosure of assets: One party failed to disclose the full extent or value of their assets, liabilities, or financial resources at the time of signing.
Fraud or misrepresentation: The agreement was obtained through dishonest conduct, such as hiding significant business interests or providing false information.
Duress, coercion, or undue influence: A party was pressured or manipulated into signing, often seen in cases where an agreement is presented shortly before a wedding with a threat to cancel the ceremony.
Lack of Independent Legal Advice: Both parties must receive independent legal advice from separate lawyers who must provide a signed certificate confirming this advice was given.
Material change in circumstances: A significant change has occurred—most commonly relating to the care and welfare of a child—that would cause hardship if the agreement were enforced.
Unconscionable conduct: One party took unfair advantage of the other's vulnerability, such as a language barrier, illness, or extreme financial dependency.
Impracticability: It is no longer possible or practical to carry out the agreement due to unforeseen circumstances.
Technical Defects: The agreement was not drafted or executed correctly according to strict statutory formalities.
If you wish to contest a Financial Agreement, then you must lodge an application with the Court seeking an order to set aside the Financial Agreement. The Court makes decisions based on evidence, so you should consider what evidence you will put forward to prove the grounds for the challenge. Like any case in Court, this can be a long and costly process.
