The agreement was obtained by fraud (including non-disclosure of material matter)When obtaining instructions for a binding financial agreement, Phillips & Wilkins ensures that the party disclose all their financial assets and liabilities. Failure to include an asset (ie an investment property in Queensland) may result in the agreement being set aside. To avoid this occurring, the party should include all assets and liabilities in their agreement.
Failure to obtain independent legal adviceA critical element in BFAs is that each party receive independent legal advice on the advantages and disadvantages of the BFA. This means that each party should receive separate advice from different legal practitioners as to the effect of the agreement. If each party were to receive advice from the same firm of solicitors, this would not be independent legal advice and the agreement may be set aside by the Family Court.
Matters arising since the execution which make the agreement unworkable.If circumstances have arisen since the agreement was made that make it impractical for the agreement or part of the agreement to be carried, the agreement could be set aside. Such circumstances can include;
- If one of the parties were to come bankrupt
- If a party’s assets were entirely disposed of
- If the parties were to a have a child
- An injury that interferes permanently with the earning capacity of one of the parties.
At Phillips & Wilkins, Chris practices in the areas of Property Law, Conveyancing and Family Law. Chris has grown up in the Northern Suburbs and continues to be a part of the local community as being a member of the Old Paradians Amateur Football Club and the Mill Park Cricket Club. Learn more about Chris' legal experience.