Tuesday, May 30, 2023

Another prenup** held to be void

View Legal blog – Another prenup** held to be void by Matthew Burgess

Previous posts have highlighted a number of examples where a binding financial agreement (or prenup) has been held to be invalid.

The case of Adame & Adame [2014] FCCA 42 provides another example where an agreement was set aside.

The factual background of the case was somewhat complex, however briefly:
  1. The relationship was described as 'tumultuous' and the parties had separated and then reconciled on numerous occasions.
  2. The wife had been told by two separate lawyers (one of whom was introduced and paid for by the husband) not to sign the draft agreement.
  3. There was evidence that suggests that the husband may have attempted to avoid disclosing the existence of some assets to the wife.
  4. There was a lack of evidence to support that the lawyer who ultimately signed the certificate saying that he had provided the required advice to the wife had in fact provided the advice.
In the context of the above factual scenario, the court decided the agreement was not binding for the following reasons:
  1. the wife said she relied on the husband’s representation of the assets that he had and that those representations were false;
  2. the court accepted that the wife was 'harassed until she signed the agreement'; and
  3. the wife’s lawyer did not discharge all of his duties to provide her with independent advice.
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** For the trainspotters, the title of today's post is riffed from the Madonna song 'I don’t give a'.

Listen here: