Binding Financial Agreements

CASE UPDATE – FAMILY LAW

In the recent case of Beroni & Corelli [2021] FamCAFC 9, the Full Court heard the husband’s appeal from a decision heard in 2019. The 2019 decision found in favour of the wife where a hairdresser’s testimony corroborated the wife’s evidence that she was not proficient in English when she signed the Binding Financial Agreement (‘BFA’). The Court set aside the BFA in this instance on grounds of unconscionability and undue influence.

In 2021, the husband appealed the decision contending that the wife was explained the essential nature of the BFA and rejected her solicitor’s advice of her own free will. The husband asserted that as independent legal advice had been given, a claim for actual undue influence should fail.

The wife’s representatives contended that it is one thing for the wife to have an understanding of the effect of the BFA, but it is a different thing for the wife to have sufficient understanding and knowledge to adequately protect her own interests.

 The Court found that the wife signing the BFA against the advice of her solicitor may be an ‘indicium of undue influence’ and that the wife did not ‘have any real understanding… as to the sort of value of claim which she would be giving up’. The husbands appeal was dismissed, and he was ordered to pay the wife’s cost of $82,275.36.