In a recent case in the Family Court of Australia, a wife was successful in her application to have a Financial Agreement set aside on the grounds that she was not provided with advice as to the advantages and disadvantages of entering the Financial Agreement.

Section 90G of the Family Law Act requires that in order for a Financial Agreement to be binding, before signing the agreement, each party be provided with independent legal advice from a legal practitioner about:-

(a)    the effect of the agreement on the rights of that party; and

(b)    about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement.

The wife’s solicitor had signed a certificate attached to the Financial Agreement confirming that such advice had been provided.

The wife’s solicitor had not retained any records as to the advice provided to the wife, nor did the solicitor have a recollection of her appointment with the wife when the Financial Agreement was signed in 2004.

The court concluded that “The evidence as a whole including the certificate, provides insufficient evidentiary foundation for a finding that advice was given about the advantages and disadvantages of the agreement for the wife at the time the agreement was made”.

The Financial Agreement was set aside.