Thanks to the law, it is possible to challenge financial agreements and set them aside by the Court of Justice. When an order is passed to nullify the agreement after the death of an interested party, it may be applied in the name or against the estate of the deceased party. As a result, it is no longer bound by the conditions set out in the BFA. Earlier this week, the High Court issued its decision on the Thorne-Kennedy case  HCA 49. This was a complaint of a decision of the Full Family Court of Australia concerning the performance of pre and non-compliance contracts in certain circumstances. Mr. Kennedy appealed against the judge`s decision. In the appeal process, the Tribunal set aside the decision and found that the agreement was fair and reasonable, because: in the event that the Court of Justice annuls the agreement and does not adopt property orders, the assets are distributed as you wish, which may not be as you intended. Although the High Court understood that it was in this particular case that it was the cause that led to the nullity of the BFA, the decision also opens the way to future challenges for existing BfAs. BFA that are entered into when a party held the cards or if the terms of the agreement favour a party may be subject to dispute.
If you or one of your clients needs advice on an existing BFA or the creation of a new BFA, please make an appointment to see one of the employees of Carr and Co. On June 16, 2011, the parties separated. In April 2012, Ms. Thorne commenced proceedings arguing that both BLOs should be revoked on the basis that their consent had been obtained because of inappropriate influence or unacceptable behaviour. In essence, it submitted that it had been put under pressure because of its circumstances to sign the agreement. To the extent that Ms. Thorne believed in essence that her relationship with Mr. Kennedy would continue (or at least Mr. Kennedy`s death) and therefore did not have to worry about what would happen to her after the separation, the Tribunal found that her agreement to the conclusion of the agreement was not in dispute. In accordance with sections 90G and 90UJ of the law, a financial agreement is binding on the parties if and only if: In August 2007, Mr. Kennedy instructed the lawyers to prepare a binding pre-marital financial agreement (“BFA”).
Ms. Thorne was alerted on September 19, 2007, when Mr. Kennedy told her that they would continue with lawyers to sign an agreement on what should happen to her money. Mr. Kennedy told Ms. Thorne that if she refused to sign the agreement, the marriage would not take place. After requesting some minor amendments, Ms. Thorne signed the agreement. The wedding went as planned. Financial arrangements are useful for estate planning, especially if one or both parties have children from a previous relationship and want to protect their property for their children in the event of incapacity to work or death.
In February 2007, after having known herself for about seven months, Ms. Thorne moved to Australia to live with Mr. Kennedy. The parties that were to be married and a marriage were arranged for September 30, 2007. The event was organized and Ms. Thorne`s family was transported for the occasion by Mr. Kennedy to Australia. (c) before or after the signing of the agreement, a signed statement from counsel was presented to each party to the spouse, in which it is stated that the deliberation referred to in point b) was forwarded to that party (whether the statement is attached to the agreement or not); It is customary to include a clause in a binding financial agreement, which deals with the right of each party to assert the right to the other party`s right to succession under the State Family Care Act, for example.
B even if the BFA part is in the process of succeeding, the agreement will continue to operate in accordance with Section 90H of the Family Act of 1975, also known as the Law.