New wife wins case against forceful husband
Imagine being pregnant, facing deportation and being given a Binding Financial Agreement by your fiance five days before your wedding and told to sign or the wedding is off.
The situation
In Blackmore and Webber [2009] FMCA FAM 154, the couple entered into a Binding Financial Agreement (under Section 90G of the Family Law Act 1975) on 11 November 2004 just days before being married on 14 November 2004.
This judgment arose following an application by the wife to set aside a binding financial agreement on the following grounds:
- There was a failure to comply with the formal requirements of section 90G
- That the agreement was obtained by fraud under 90K (1)(a) including non-disclosure of a material matter
- That pursuant section 90K(1)(b) the agreement was voidable or unenforceable in that it was obtained under duress
- That pursuant to 90K(1)(e) the husband engaged in conduct that was in all the circumstances unconscionable
The decision about the binding financial agreement
The Court agreed with the wife that the agreement should be set aside on the basis of the husband’s “fraud” due to the non-disclosure (in circumstances where he had a positive obligation to disclose) of the value of the husband’s pension. Although not required to determine the ultimate question the court also would have found that there was duress where:
- The binding agreement was first produced to the wife five days before their wedding
- The husband told the wife the wedding would be off if she did not sign the agreement
- The wife was four to five months pregnant with the husband’s child
- The wife’s visa was due to expire had the wedding not proceeded and the wife would have to leave Australia
Comment from Mark Streeter – Sydney Family Law Lawyer
The Court also concluded that it would have been satisfied that the husband engaged in conduct that put the wife at a special disability.
The Court found that at the time of signing the Binding Financial Agreement the wife’s command of the English language was limited, that she was pregnant, that she lacked close family support and faced possible expulsion for the country if she did not marry.
Call me for an appointment to discuss any Binding Financial Agreements you may have, or wish to create.
