b inding f inancial a greements paul doolan may 2011
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B INDING F INANCIAL A GREEMENTS Paul Doolan May 2011 Slide 2 Black & Black Amendments Retrospective legislative response Commenced 4 January 2010 Slide 3 Section 90G(1)(a) A financial agreement is binding on the parties if, and only if: (a) The agreement is signed by all parties; and Slide 4 Section 90G(1)(b) (b) Before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and Slide 5 Section 90G(1)(c) (c) Either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and Slide 6 Section 90G(1)(ca) (ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; Slide 7 Get out of Jail Card s90G(1A) enforcement application Slide 8 Slide 9 Kostres & Kostres  Fam CAFC 222 Full Court of Family Court Problems of drafting agreements and contractual certainty Slide 10 Wallace & Stelzer  FamCA 54 Appeal pending to Full Court Constitutional validity of 2010 amendments Equitable rectification Slide 11 Balzia & Covich  Fam CA 1357 Onus of Proof Rectification Slide 12 Senior & Anderson  Fam CA 601 Document mistakenly drawn pursuant to s90C not s90D Rectification Slide 13 Cardwell v Hansell; unreported, Altobelli FM s90E Release of maintenance rights Slide 14 Parker & Parker  Fam CA 664 Appeal reserved by Full Court Meaning of unjust and inequitable if the agreement were not binding Slide 15 Slide 16 What do clients usually expect it will cost for you to draft a standard BFA? Slide 17 Slide 18 What does it actually cost (range) for you to draft a standard BFA? And what is the most you have charged a client for work on a BFA? Slide 19 Have you had a costs dispute with a client about work you did on a BFA? Slide 20 Do you mark client files dealing with BFAs not to be destroyed? Slide 21 Do you store an extra copy of signed BFAs somewhere else than simply with the client file? If yes, where? Slide 22 What is the most common misconception clients have about BFAs? Slide 23 How close to the date of a wedding, are you prepared to prepare a BFA or sign a Certificate/Statement of Independent Legal Advice for a client? Slide 24 Have you been involved in a case, where a wedding has been called off due to a dispute about the terms of a proposed BFA? Slide 25 What is the strangest clause you have been asked by a client to put in a BFA? Slide 26 Do you think the changes to s90G that came into effect on 4 January 2010 : Fully address and solve the confusion about when BFAs are binding; Partially address and solve the confusion about when BFAs are binding; Add to the confusion about when BFAs are binding.